Mahoney v. Jevco Insurance Company, 2022 CanLII 65547

Citation: Mahoney v. Jevco Insurance Company 2022 ONLAT 21-004916/AABS - M

Licence Appeal Tribunal File Number: 21-004916/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:

Alicia Mahoney Applicant

and

Jevco Insurance Company Respondent

MOTION DECISION

Order made by: Craig Mazerolle, Adjudicator

Date of Order: July 13, 2022

BACKGROUND

1The applicant was injured in an automobile accident on June 7, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).

2A videoconference hearing is set for September 6 and 7, 2022. The issues in dispute include the Minor Injury Guideline (“MIG”) determination, as well as an income replacement benefit, medical benefits, and interest.

NOTICE OF MOTION

3The applicant filed a Notice of Motion (submitted June 10, 2022) seeking a declaration that she is not barred from proceeding to a hearing on account of s. 55(1) of the Schedule. Briefly, the applicant wanted an assurance that her non-attendance at an insurer’s examination (“IE”) with a psychologist would not limit her ability to proceed her application to a hearing.

4She also sought costs in her Notice of Motion, but eventually withdrew this request at the motion hearing held on July 4, 2022.

5Furthermore, at the motion hearing, the applicant raised a new allegation that her treatment plan for a psychological assessment was not denied in accordance with s. 38(8) of the Schedule. As such, she claimed entitlement to a payment for the assessment pursuant to s. 38(11).

6The respondent opposed the applicant’s motion, and instead sought a stay.

7For the reasons to follow, I find the applicant failed to attend a “reasonably necessary” IE. However, I am satisfied that there is enough time before the hearing to complete a rescheduled IE, so no stay will be granted.

PARTIES’ POSITIONS

8The applicant supported her request with four main arguments. First, the applicant contended that the denial of the treatment plan that led to this disputed IE was not done in accordance with the Schedule. The applicant argued this determination disposes of her motion, so a ruling on s. 38(8) must be made before any conclusion can be reached about the IE. Second, the applicant argued that she did not receive a compliant Notice of Examination, as the purported “reasons” did not reference her medical condition. Third, the applicant challenged the “reasonably necessary” nature of the IE by pointing to the timeline for the request. Briefly, the respondent requested the IE after she had filed her Tribunal application, so the timing suggests the IE was set up to improperly bolster the respondent’s case. Finally, the applicant asserted the respondent would not experience any prejudice from going without this IE, because it has an addendum report from a GP about her disputed treatment plan. She also questioned whether s. 55(1) could even apply, since the IE was requested after she filed her Tribunal application.

9Aside from disputing the way this submission was put to the Tribunal, the respondent opposed the applicant’s reliance on s. 38(8) by claiming it properly denied the benefit. In a similar vein, the respondent asserted it provided a valid Notice of Examination, because it referenced her soft tissue injuries (a medical “reason” that has been accepted by the Tribunal). The respondent further challenged the claim it wanted to bolster its case by noting that the timeline for its IE request was in response to the applicant’s delayed exchange of medical records. Finally, the respondent submitted that the applicant’s interpretation of s. 55(1) is illogical, as it would allow insured persons to preempt IEs by filing applications.

10In reply, the applicant disputed the claim that the respondent needed her medical documentation before it could set up the psychological IE.

ANALYSIS

Section 38(8)

11Section 38(8) of the Schedule provides requirements for valid denials of benefits. The applicant contended that her psychological assessment treatment plan was not denied in accordance with this provision, so she is entitled to payment under s. 38(11). The applicant also argued that a ruling on the application of s. 38(8) is needed before any determination can be made about ss. 44 and 55(1).

12I will not make a ruling on this submission. Aside from a passing reference in the applicant’s written motion submissions, this argument was not fleshed out until her oral submissions at the motion hearing. A request for this kind of substantive relief should have been clearly laid out in the Notice of Motion, in accordance with Rule 15 of the Common Rules of Practice & Procedure.

13Regardless, I am not satisfied that a ruling on the application of s. 38(8) is required before ruling on the application of ss. 44 and 55(1). The former provision is independent of the latter two sections, with no language in the Schedule requiring one determination to happen before the other.

14With these considerations in mind, I will leave the applicant’s argument about ss. 38(8) and (11) to the hearing adjudicator.

Notice of Examination

15Section 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.

16Section 44(5) lists the requirements for a valid Notice of Examination for an IE [emphasis added]:

If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination;

(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

17Section 55(1) disallows applicants from pursuing a benefit if they failed to attend an IE, but 55(2) provides discretion to allow non-compliant applicants to continue with their applications.

18Since the parties disagreed over the sufficiency of the respondent’s “medical and any other reasons”, it will be helpful to quote the oft-cited paragraph from M.B. v. Aviva Insurance Canada (“M.B.”) that described the consumer protection purpose underpinning “reasons”:

… an insurer’s “medical and any other reasons” should, at the very least, 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. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.¹

In short, “reasons” are a procedural right that insured persons can rely on to help them navigate accident benefit disputes. These statements should not complicate an already complicated process, but should rather assist insured persons (regardless of their familiarity with the system) to understand and respond to their insurers’ requests for IEs, denials, etc.

19The respondent sent a letter to the applicant (dated September 17, 2021) providing the following details about its request for an IE [emphasis in original]:

Reason and Description of the Examination

The OCF 18 treatment and assessment plan… is proposing a psychological assessment and a documentation fee in the amount of $1995.32. Based on the medical documentation and information that we have on file and the clinical notes and records from Dr. Chiang, it appears the injuries sustained at the time of the accident are predominantly soft tissue injuries. Therefore, we require a second medical opinion to determine if this assessment is reasonable and necessary and if your injuries can be treated under the Minor Injury Guideline.

20I find these “reasons” meet the consumer protection mandate of s. 44(5)(a). This letter laid out the following information: the benefit at issue; the relevant standard for entitlement to this benefit; the relevant information in its possession; and the information it hoped to obtain from the assessment. On this last point, the letter noted the IE would help it determine whether it was correct in its assessment (based on Dr. Chiang’s clinical notes and records) that her “injuries sustained at the time of the accident are predominantly soft tissue injuries”.

21This information meets the consumer protection mandate for “reasons”, because it provided the applicant with meaningful context about why the testing was being proposed. The letter also suggested what the applicant could do if she did not agree to attend the IE, e.g., provide additional medical records to assist the respondent in adjusting this medical benefit.

22The applicant argued that the reference to “soft tissue injuries” is not responsive to her claim for a psychological assessment, as psychological and physical impairments can co-exist. Also, she contrasted the significant amount of detail in her treatment plan to the statements in the Notice of Examination—evidence of the “boilerplate” nature of these “reasons”. I do not put much weight on these arguments, as I am satisfied the letter met the standard described by M.B. These “reasons” laid out the relevant information the respondent had in its possession, as well as the information it hoped to obtain from the IE. This context is sufficient to provide helpful guidance to the applicant, so any further detail (while helpful) is not necessary to meet s. 44(5)(a).

23The letter then included the other details required by ss. 44(5)(b) – (d), e.g., date and time, assessor’s qualifications, etc. Therefore, I find the September 17, 2021 letter met the requirements for a valid Notice of Examination.

“Reasonably Necessary” Examination

24I am then satisfied that the missed psychology IE was “reasonably necessary” for assessing the applicant’s entitlement to the treatment plan for a psychological assessment and the application of the MIG.

25First, there is a reasonable nexus between the IE and the benefit and designation at issue. The applicant sought funding for a psychological assessment, so it was reasonable for the respondent to want its own psychological assessor to consider the request. Additionally, in light of the psychological complaints listed in this treatment plan, I find it was also reasonable for the respondent to assess the applicant’s psychological condition as it relates to the MIG. Psychological impairments do not fall under the definition of a “minor injury”, so determining whether the applicant merits removal from this funding limit on account of her psychological condition is essential to adjusting this claim.

26Further, as there has been no psychological IE conducted to date, I do not find a single IE with a psychologist is excessive. The applicant cited the GP addendum about this treatment plan (as well as the respondent’s physical demands analysis and the original GP IE) to challenge the need for this further testing. However, these reports do not affect my analysis. The applicant has put forward evidence of psychological complaints, and fairness requires the respondent to have a chance to assess her condition with its own psychological assessor.

27Where I do have concerns though is with the timing of the IE. As highlighted by the applicant, the timeline leading to the September 17, 2021 Notice of Examination, on its face, might indicate that it was arranged for the improper purpose of bolstering the respondent’s position at a hearing. Despite the treatment plan being submitted in March 2021, the IE was not requested until September 17, 2021—a date that is well after the application was filed with the Tribunal on April 20, 2021.

28Despite this timeline, I am still satisfied that the IE was set up for the proper purpose of adjusting the applicant’s claim. Following the submission of the treatment plan on March 23, 2021, the respondent sent correspondence (dated March 29, 2021) requesting medical records from the applicant. In this letter, the applicant was told to submit these records by April 12, 2021, but she did not provide the respondent with her GP’s records until August 21, 2021. The IE was set up several weeks later.

29Insurers have an ongoing obligation to adjust an insured person’s claim, even if litigation has commenced. It is clear that the respondent’s receipt of these medical records prompted it to request a psychological IE. Though it would have been preferable for the respondent to make this request earlier (e.g., following its self-imposed April 12, 2021 deadline for the medical records), I do not find this less than ideal timeline alone detracts from the “reasonably necessary” nature of this IE. Once again, the applicant is claiming a benefit that is premised on psychological complaints, so it is “reasonably necessary” for the respondent to have at least one opportunity to test these complaints with its own psychological assessor.

30In sum, I find the applicant failed to attend a “reasonably necessary” IE. She received a compliant Notice of Examination, so s. 55(1) of the Schedule is triggered.

31I will add that I do not accept the applicant’s argument that s. 55(1) can only be triggered if the IE is requested before an application is filed with the Tribunal. This interpretation would remove an insurer’s ability to guide the assessment process under s. 44, since an insured person could file an application prior to an IE being set. It would also detract from the general principle that an insurer’s duty to adjust a claim in good faith does not end when litigation begins.

Section 55(2)

32Despite this non-attendance (and in line with the respondent’s request for a stay, as opposed to a dismissal of the application), I will use the discretion afforded to me under s. 55(2) to allow the applicant’s application to proceed to the hearing.

33I accept that there is significant prejudice facing the respondent from proceeding to a hearing without this report. The applicant’s alleged impairments include psychological complaints, so a procedurally fair process requires the respondent to have the chance to assess these claims with its own psychological assessor. However, I am satisfied that there is still enough time before the hearing for the parties to work together to reschedule and complete this psychology assessment. Therefore, with some minor amendments to the remaining hearing deadlines, I am satisfied that there is sufficient time for the parties to schedule and conduct this “reasonably necessary” IE.

ORDER

34The missed psychology IE is “reasonably necessary”, pursuant to s. 44(1) of the Schedule, and the respondent provided a compliant Notice of Examination for this IE, pursuant to s. 44(5).

35The applicant’s application is allowed to proceed to the hearing, by virtue of s. 55(2).

36The respondent may provide the applicant with a psychological IE report it intends to rely upon at the hearing by August 19, 2022.

37The parties shall exchange (and file with the Tribunal) their finalized witness lists by August 22, 2022.

38The parties shall exchange (and file with the Tribunal) their document briefs by August 26, 2022.

39Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full force and effect.

Footnotes

1. 12017 CanLII 87160 (ON LAT) (Reconsideration), at para. 26.