Licence Appeal Tribunal File Number: 21-002468/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:
Roland Spiegel
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUES DECISION AND ORDER
VICE-CHAIR:
D. Gregory Flude
APPEARANCES:
For the Applicant:
Roland Spiegel, Applicant, self-represented
For the Respondent:
Karen Jenkins, Claims Representative
Lisa Pool, Counsel
HEARD: by Videoconference:
July 11, 2022
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant, Roland Spiegel, was involved in an automobile accident on October 18, 2011. He was also involved in motor vehicle accidents on October 30, 2009, and May 6, 2019. He currently has two applications proceeding with respect to the October 18, 2011 accident (20-000408/AABS and 21-002468/AABS), one with respect to the October 30, 2009 accident (21-006907/AABS) and one with respect to the May 6, 2019 accident (20-000279/AABS), seeking benefits under the various versions of the statutory accident benefits schedules current on the dates of the accident.
2The claims for benefits advanced in the current file, file number 21-002468/AABS are:
a. Is the applicant entitled to an income replacement benefit (“IRB”) from November 25, 2013 to date and ongoing, and if so, in what amount?
b. Is the applicant entitled to $4,900 for medication (for Platelet-Rich Plasma injections for his shoulder) proposed in a treatment and assessment plan/OCF-18 (“plan”) dated October 19, 2020?
c. Is the applicant entitled to $4,900 for medication (for Platelet-Rich Plasma injections for his hip) proposed in a plan dated October 19, 2020?
d. Is the applicant entitled to $2,200 a chronic pain assessment proposed by Dr. Igor Wilderman in a plan dated October 19, 2020?
3The respondent, Intact Insurance Company (“Intact”), has brought this preliminary issue motion to determine if Mr. Spiegel can continue his claim for the benefits he seeks. With respect to the IRB claim, Intact submits that Mr. Spiegel was not entitled to an IRB in the first 104 weeks post accident and, thus, does not meet the statutory test for entitlement. Intact also relies on the fact that Mr. Spiegel did not dispute its denial of his IRB claim for 6½ years following its denial, well past the date the two year limitation period in s. 56(1) of the 2011 version of the Statutory Accident Benefits Schedule – Effective September 1, 2010 O. Reg 34/10 (“Schedule”) and s. 281.1 of the 2011 version of the Insurance Act, R.S.O 1990 c. I.8.
4With respect to the three disputed treatments, Intact submits that Mr. Spiegel has consistently refused to attend appointments to be assessed by healthcare practitioners of Intact’s choosing (“IEs”) and is barred from proceeding with these claims by s. 55 of the Schedule.
5I find that Mr. Spiegel does not meet the test for entitlement to an IRB and dismiss that part of his claim. I also find that Mr. Spiegel has consistently refused to attend IEs. Pursuant to s. 55 of the Schedule, he is prohibited from applying to this Tribunal. This is not a case for the exercise of my discretion set out in ss. 55(2) and (3). His claim for the three benefits is dismissed.
ANALYSIS
Income Replacement Benefit – No entitlement within 104 weeks
6Entitlement to an IRB is set out in s. 5(1) of the Schedule. Mr. Spiegel asserts that he was self-employed at the time, so the applicable section in 5(1)(2) which states:
The insured person,
i. was a self-employed person at the time of the accident, and
ii. suffers, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of his or her self-employment.
7Intact points to Mr. Spiegel’s letter of May 11, 2020 to its adjuster, Judy Ellenberger, wherein Mr. Spiegel reviews his declining condition and asserts that “towards the end of 2013, when, [sic] I realized that I was not well and unable to work. Notably, this was well after the October 18, 2013 which, was after the two years anniversary of my MVA.” Intact takes this letter as an admission by Mr. Spiegel that he was not substantially unable to perform the essential tasks of his employment during the first 104 weeks post accident and it clearly is. During his evidence Mr. Spiegel attempted to resile from this position and argue that his substantial inability commenced before October 18, 2013. In the face of this letter and given the lack of other supporting evidence, I do not accept his revised evidence about the commencement of his substantial inability. In fact, in his claim for an IRB, he defines the onset of his entitlement as November 30, 2013, beyond the 104 week mark and inconsistent with his position that he had a substantial inability before October 18, 2013.
8Mr. Spiegel focussed on the fact that he suffered some form of disability immediately after the accident. He relied on two disability certificates (“OCF-3”) authored by Dr. Ray Zatzman, a physician, and signed by Mr. Spiegel, one dated October 16, 2012 and the second dated January 18, 2013, both indicating he had a substantial inability to work, in support of his contention that he met the test for entitlement. The facts do not support Dr. Zatzman’s conclusions. Mr. Spiegel himself states that he carried on working and it was not until June or July 2013, that is after the second OCF-3, that the impact of his impairments began to mount leading to a substantial inability some time after October 18, 2013. In this submission, Mr. Spiegel misunderstands the applicable test. It is not whether he sustained an impairment in the accident, but whether the impairment led to a substantial inability to carry out his self-employment tasks. There is evidence of the former and equally clear evidence he did not meet the latter condition.
9On the basis of this letter alone, and my rejection of Mr. Spiegel’s assertion that his substantially inability to work started before the 104 week mark after the accident, I find that Mr. Spiegel has failed to establish on a balance of probabilities that he suffered a substantial inability to perform the essential tasks of his self-employment within 104 weeks of the accident. There is no evidence to support his recent assertion of an earlier onset of a substantial inability. Even if I were not satisfied that he did not qualify within 104 weeks, since I find below that his claim was made beyond the limitation, he cannot advance the claim in any event.
Income Replacement Benefit – Failure to apply with the limitation period
10Intact submits that it denied Mr. Spiegel’s claim for an IRB by letter dated November 8, 2012. It reaffirmed the denial by letter dated February 4, 2013. It flows from these dates that Mr. Spiegel’s reassertion of his claim for an IRB in correspondence dated March 16, 2020, followed by his appeal to this Tribunal in February 2021 was well beyond the two year limitation period in both the Insurance Act and the Schedule.
11Mr. Spiegel submits that he did not receive the two letters of November 2012 and February 2013. He also asserts that the denials are not proper because Intact did not send him an Election of Income Replacement, Non-Earner or Caregiver Benefit (“OCF-10”) with the denial letters. I find the whole of Mr. Spiegel’s submissions and correspondence with Intact are inconsistent with him not receiving the November 8, 2012 and the February 4, 2013 letters.
12The letter of November 8, 2012 was written two weeks after Intact received the first OCF-3. It states: “It is our understanding that you were absent from work due to your accident related injuries for a period of less than 7 days. As a result, you are not eligible to receive the Income Replacement Benefit.” Mr. Spiegel makes two submissions on this letter in addition to his allegation that it was not received. First, he alleges the denial is not clear and unequivocal because Intact advised that he might provide further information if he was unable to work within 104 week, that is until October 8, 2013. Secondly, Mr. Spiegel asserts that Intact was required to deliver an OCF-10 with this letter and its failure to do so means there has not been a proper denial.
13Intact has a duty to continue to adjust Mr. Spiegel’s claim as new information is made available. To state that it will continue to consider new information does not import any lack of clarity into the meaning of the November 8, 2012 letter. It is a denial plain and simple but goes on the state to Mr. Spiegel that if he knows of or becomes aware of something bring it forward and Intact will revisit its decision. From the record before me, the only new document was a second OCF-3 from Dr. Zatzman dated January 18, 2013, ignoring the fact that Mr. Spiegel was working and saying he was substantially unable to do so.
14The second OCF-3 is the first inconsistency in Mr. Spiegel’s denial of receipt of the November 8, 2012 letter. What stimulated its production? Intact had not asked for another OCF-3 and the first OCF-3 was only 3 months old. In my view, the only reasonable inference arising from Mr. Spiegel going back to Dr. Zatzman for an OCF-3 that is largely identical to one produced shortly before is that Mr. Spiegel was responding the November 8, 2012 denial letter and providing what he thought was the further information requested in that letter.
15The second inconsistency with respect to the receipt of the November 8 letter arises out of his unexplained lack of action. Having, in his mind, applied for an IRB on October 16, 2012, received by Intact approximately one week later. Mr. Spiegel does nothing to follow up on his claim for the benefit until 2020 except submit a second OCF-3 to which Intact responded in February 2013 reasserting its position. This inaction speaks volumes about his knowledge of Intact’s position with regard to his entitlement to an IRB and his acceptance of that position, a position that can only have been made known to him by receipt of the November 8, 2012 letter. Had he suffered a substantial inability prior to October 18, 2013, it is reasonable to assume that he would have asserted his claim with the vigour he currently displays in his various claims.
16Finally, the content of the May 11, 2020 letter itself is inconsistent with non-receipt. It is clear that Mr. Spiegel was well aware that he had been denied an IRB many years earlier. He does not base his renewed claim for an IRB on a failure of Intact to properly deny his claim. He bases it on a change in the law about discoverability arising out of the Ontario Court of Appeal decision in Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882. While his evidence before me was that the first time he saw the November 8, 2012 letter was several months after the May 11, 2020, the content of the May 11 letter makes no sense if Mr. Spiegel had not been aware that his claim has been denied because of his return to self-employment following the accident.
17Looking at the inconsistencies outlined above, I am satisfied on a balance of probabilities that Mr. Spiegel received the November 8, 2012 letter. The 2012 letter clearly denies his entitlement to an IRB and sets out the appeal process. I find that, allowing five days for delivery by mail, the limitation period started to run from, at the latest, November 14, 2012. Mr. Spiegel is out of time to bring a claim for an IRB.
18I find the allegation that Intact failed to deliver an OCF-10 to be a red herring. An OCF-10 is required where an insured appears to the insurer to be entitled to more than one of three benefits – an IRB, a non-earner benefit, and a caregiver benefit. Mr. Spiegel continued his self-employed following the accident, thereby largely, but not entirely ruling out a non-earner benefit. He had no dependents, thereby ruling out a caregiver benefit. On a review of his OCF-3, a reasonable insurer would conclude that his entitlement was limited to an IRB, and it was unnecessary to send an OCF-10. There is also the fact that the November 8, 2012 letter addresses entitlement to an IRB and that is the benefit Mr. Spiegel has consistently been seeking. If he felt himself entitled to a non-earner benefit, his remedy was to advise Intact in 2012, not wait until 2020.
19Finally, I can see no consequences to Intact for not delivering an OCF-10 in 2012. The Schedule is silent on the point. This is in contrast to other provisions requiring insurers to pay benefits until they come into compliance.
Non-Attendance at IEs
20It is not disputed that Mr. Spiegel did not attend IEs arranged by Intact. It is also not disputed that while he physically attended at an occupational therapist assessment and a medical assessment, he became dissatisfied with the answers he received about the documentation that had been reviewed and would not continue with the assessments. He was dissatisfied with his view of the practice experience of several assessors, and he wanted to limit the permission form to one drafted by him. He asserts a right to vet the assessors chosen by Intact and stated his intention to advise assessors he would report them to their regulatory body if, in his view, they opined on matters he deemed were outside their area of expertise.
21Intact’s right to require Mr. Spiegel to attend assessments is set out in s. 44 of the Schedule. Section 44 sets out a comprehensive code for arranging assessments that addresses all of Mr. Spiegel’s submissions and concerns. It is specifically crafted to eliminate disputes over the expertise of the Intact’s assessors.
22S. 44(1) permits Intact to require Mr. Spiegel to attend an IE “by one or more persons chosen by the insurer who are regulated health professionals.” This wording immediately eliminates any right asserted by Mr. Spiegel to vet his assessors. As the Tribunal stated in J.C. v. Aviva General Insurance Company, 2020 CanLII 80298 (ON LAT) (”J.C.”):
The accident occurred in 2011 and we have requested Mr. Spiegel to participate in Section 44 to determine if other modalities of treatment that he is requesting is reasonable and necessary as a result of the accident. It has been 9 years since the accident. The many diagnoses provided and the medical information submitted does not establish that the impairments are caused by the subject accident. Therefore, we will require a Section 44 IE to determine if the treatment is reasonable and necessary as a result of the impairments from the October 18 2011 accident.
23Mr. Spiegel has unsuccessfully asserted a not dissimilar position in the past in Spiegel v Intact Insurance Company, 2021 CanLII 111180 (ON LAT) (“Spiegel 1”), an appeal of his entitlement to benefits arising out of his October 30, 2009 accident. At paragraph [43] of the decision, the Tribunal addressed the conditions that Mr. Spiegel sought to impose on Intact’s choice of assessor. Specifically, Mr. Spiegel submitted that he would not attend an assessment unless the assessor had expertise in cannabis therapy.
24On the current facts, Mr. Spiegel asserts a right to require his assessors to have expertise in Platelet-Rich Plasma therapy. He also argues that psychological assessors and physiatrists would need expertise in chronic pain assessments. He demands delivery of a breakdown of the assessors’ expertise before he consents to attend. As stated in J.C. above, s. 44 does not entitle him to such input.
25Mr. Spiegel submits that the qualifications of the assessors go the reasonableness of the assessment. J.C. states that a requirement for an assessment is that it “is reasonably necessary.” Recognizing that reasonable dealings may guide consideration of the whole of the Schedule, I believe J.C. misstates the s. 44 requirement. Section 44(1) talks about Intact’s right to assessments “but not more often than is reasonably necessary.” It addresses the frequency of assessment and prevents an insurer harassing a claimant by sending the claimant for repeated assessments in close proximity to each other for the same complaint.
26Intact points out that Mr. Spiegel claimed these particular treatments in dispute for the first time when he submitted the three treatment plans on October 19, 2020. In its submission it is entitled to the IEs under s. 44, and since there have been no other assessments, it cannot be said that these assessments run afoul of the frequency provisions. Mr. Spiegel took the position that Intact had extensive medical documentation and therefore did not need the assessments. Essentially Mr. Spiegel’s submission is that Intact could conduct a review of his medical records (“paper review”) without requiring his attendance. Section 44 does not dictate that Intact must justify its choice of an in-person assessment over a paper review. The language of s. 44(4) permitting paper reviews uses the permissive “may” and s. 44(5) requires notification of the type of review to be conducted.
27Mr. Spiegel submits that Intact’s Notices of Examination were not in compliance with s. 44(5). According to that subsection, Notices of Examination for each assessment must contain the following information:
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.
28Mr. Spiegel submits that the notices are defective in two regards: they do not include medical and other reasons; and they do not sufficiently disclose the specialization of the assessors. I have already addressed Mr. Spiegel’s assertion of the need for disclosure above so I will only touch on it briefly here.
29There are three treatment plans that triggered Intact’s requirement for Mr. Spiegel to undergo IEs. Each treatment plan had a page delineating 26 diagnoses, ranging from sprains though fibromyalgia, radiculopathy, sleep disorders. and malaise and fatigue. In response to those treatment plans, Intact gave the following reasons:
The accident occurred in 2011 and we have requested Mr. Spiegel to participate in Section 44 to determine if other modalities of treatment that he is requesting is reasonable and necessary as a result of the accident. It has been 9 years since the accident. The many diagnoses provided and the medical information submitted does not establish that the impairments are caused by the subject accident. Therefore, we will require a Section 44 IE to determine if the treatment is reasonable and necessary as a result of the impairments from the October 18 2011 accident.
30In M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (“M.B.”) the Tribunal established a rationale for the provision of medical and other reasons: “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.” The issue, then, is whether the above reasons would allow an unsophisticated person to make and informed decision.
31The medical and other reasons boil down to this: the accident was a long time ago, you now complain of many and diverse problems and seek various types of treatment, the medical record you have provided does not support a conclusion the accident caused those problems, and we need to examine you to determine if the accident did cause the problems. In my view, an unsophisticated insured would be in a position to make an informed decision about whether to pursue the claim or abandon it.
32Mr. Spiegel submits that the term “many diagnoses provided” is vague. He submits that Intact had to be more specific about which diagnoses it was relying on to require the IEs. Mr. Spiegel himself had submitted and was relying on 26 diagnoses and the impugned phrase does no more that state the obvious.
33Mr. Spiegel also submits that it was insufficient to simply identify the assessors as MD, Physiatry (Dr. Berbrayer), MD, Psychiatry (Dr. Gratzer), or Physiatrist, Physical Medicine and Rehabilitation (Dr. Marchuk). I have rejected his position above, that he is not entitled to the assessors’ curricula vitae as a condition of attendance. He is entitled to the assessors’ the name, any regulated health profession to which the assessor belongs and the assessor’s title and designation indicating any specialization. Mr. Spiegel did not dispute that these details had been provided in the Notices of Examination, he simply wanted more detail.
34I find that the Notices of Examination were in compliance with the requirements of s. 44 of the Schedule.
35Mr. Spiegel submits that he attended the assessment scheduled with Dr. Marchuk. Intact submits that he did not. It is agreed that he was present physically. The assessment was scheduled for a Saturday morning to accommodate Mr. Spiegel. According to Mr. Spiegel he attended at the assessment location. He asked the receptionist what records she had. Did she have all the records for his file? Since the location of assessment was not at the address listed as the head office of the assessment company, he wanted to know why his private health information was in the hands of an organization he did not know. He refused to sign the consent form provided and asked to see Dr. Marchuk. He finally left because his driver had to leave. The assessment never took place.
36The company coordinating the assessments on behalf of Intact, HVE Assessments, wrote a Late Cancellation Memo following this attendance setting out a different version of events. According to the memo:
Assessment was late cancelled. The assessor’s office has advised upon arrival the claimant declined to sign the consent form or to fill out the questionnaires required to proceed. He was asking them questions surrounding the file that the receptionist was unable to answer. He was directed to contact his adjuster.
The claimant was being very aggressive in the way he was speaking to the receptionist and began recording the office and walking around threatening to call the college of physicians and make a complaint about Dr. Marchuk. She advised that after trying to diffuse the situation without success Dr. Marchuk's receptionist asked him to leave the building multiple times, however, he refused to leave and said he would wait there until the end of the day. Dr. Marchuk's [receptionist?] advised that due to his aggressive behaviour and refusal to leave the building after being asked to exit multiple times she had no other option than to have the police involved
37The major difference between the two versions of events really boils down to the vehemence of Mr. Spiegel’s protest. He agreed that he refused to fill out the questionnaires or sign the consent form. In his submissions before me, he was free with threats to report assessors to their regulatory bodies if he felt they exceeded their area of expertise in preparing their reports. He has previously stated a desire to record his assessments. Synthesizing the two versions of events, I conclude that Mr. Spiegel refused to participate in the assessment by refusing to fill out the intake questionnaire or the consent form. Thus, while he was physically present, it cannot be said he attended this IE, since cooperation with the assessor is an essential component of attendance.
38Mr. Spiegel objects to the consent the assessors wanted him to sign. In his view this relieves him of the duty to attend the assessment. He drafted his own consent form and will not attend assessments unless his consent form is used. He relies on Intact Insurance Company v Beaudry, 2016 ONSC 6127 (“Beaudry”) where Beaudoin J. held that the reasonableness standard applied to the terms of the assessment consent form. In the absence of a standard consent, Beaudoin J. held that consent forms may be negotiated.
39My difficulty with Mr. Spiegel’s position is that he does not identify objectionable terms in the HVE Informed Consent and Release of Assessment Information form he provided in his materials. He made general comments about the consent releasing the assessor from everything. It does not. It simply addresses the fact that the assessor is not in a treating relationship with Mr. Spiegel, confirms that Mr. Spiegel will disclose all of his known medical conditions and the assessor may release the report to Intact. Mr. Spiegel’s alternate consent does not address any of these issues and relies on an implied consent.
40Mr. Spiegel also made it clear in submissions that he would not attend unless his form was used. This is, of course, the antithesis of negotiation. Without clear direction from Mr. Spiegel as to what is objectionable about the HVE form and what changes he wishes to be made, it appears to me that the consent issue is nothing more than an attempt by Mr. Spiegel to avoid attending IE assessments.
41I find that Mr. Spiegel has failed to attend properly scheduled s. 44 IEs. He has required Intact to use assessors that have expertise he deems acceptable. When he did attend one IE, he refused to cooperate with the assessor by refusing to fill out the intake forms, he did not make his specific objections to the consent explicit so a new consent could be negotiated, and he attempted to record the activities in the IE facility. By virtue of s. 55, he is barred from proceeding with his claim for the two treatments and the assessment currently in dispute unless he can bring himself within the provisions of ss. 55(2) and (3).
Discretion
42Sections 55(2) and (3) of the Schedule provide that the Tribunal may allow a matter to proceed on terms despite non-attendance at a s. 44 IE. As with all discretion, it must be exercised judicially. I find that this is not a case for the exercise of my discretion.
43Mr. Spiegel is well aware of the consequences of non-attendance and his attempts to impose conditions on attendance. In Spiegel 1, Mr. Spiegel was denied the right to seek two benefits because of his non-attendance at IEs. In that case he also asserted the right to have the assessors’ qualifications specifically spelled out with respect to the treatment he was seeking (a massage chair and medical cannabis). His argument was rejected by the Tribunal. He reasserted that argument before me. Intact did not argue that this was an abuse of process, but it bears all the hallmarks.
44Mr. Spiegel also made clear in his closing submissions that he has no intention of attending the IEs unless and until his demands are met. This submission stands somewhat in contrast to his stated desire to attend IEs made earlier in his submissions, but even that willingness was not linked to any concessions. In fact, his willingness to attend was limited to an assessor he considered qualified. In light of this recalcitrance, there is little point in giving him a further opportunity only for it to be squandered by further non-attendance at future IEs.
45Finally, there is Mr. Spiegel’s stated intention to threaten any assessor he does not endorse with regulatory action during the assessment. Threats are not conducive to the reasonable underpinnings of the interaction between an insurer and its insured highlighted in Beaudry.
ORDER
46Pursuant to the provisions of s. 56 of the Schedule, Mr. Spiegel’s claim for an IRB is dismissed because it was brought beyond the 2-year limitation period. His claim for the three treatment plans in dispute in this matter is dismissed pursuant to s. 55(1) of the Schedule. This is not a case for the exercise of my discretion set out in ss. 55(2) and (3).
Released: August 26, 2022
__________________________
D. Gregory Flude
Vice-Chair