Citation: Derenzis v. Gore Mutual Insurance Company, 2023 ONLAT 21-000394/AABS

Licence Appeal Tribunal File Number: 21-000394/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:

Lucia Derenzis

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Lucia Derenzis, Applicant Peter Murray, Counsel Eric Winkworth, Counsel

For the Respondent:

Sarah Beecraft, Claims Representative

Arthur Camporese, Counsel Christine Ellis, Counsel

Court Reporters:

Sharon Kemp and Maureen Biscak

HEARD: by Videoconference:

June 6 to 10, 2022, stayed to January 27, 2023

OVERVIEW

1The applicant was involved in an automobile accident on November 24, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The applicant initially sought entitlement to a number of treatment plans for physiotherapy, occupational therapy and the cost of a home modification assessment. Those treatment plans were denied because the applicant had already reached her non-catastrophic impairment policy limits of $50,000. The respondent subsequently advised the applicant that it accepted that she sustained a catastrophic impairment. It also advised the clinics whose staff had prepared the treatment plans that the disputed plans were approved.

3The applicant is seeking a determination that she is deemed to have incurred the medical and rehabilitation expenses set out in the treatment plans and that she is entitled to an award under Reg. 664. She claimed that the respondent unreasonably delayed paying her benefits by failing to accommodate her disabilities under the Human Rights Code and delayed in making a determination that she was catastrophically impaired by not scheduling insurer’s examinations (“IEs”) in accordance with s.44 and s.45 of the Schedule. The respondent denied that it delayed in determining catastrophic impairment and submitted that any delays were caused by the applicant’s refusal to attend IEs properly requested in accordance with the Schedule. The respondent also submitted that the issue of whether the respondent’s IE requests for the applicant to attend catastrophic impairment IEs were properly made was determined by the Tribunal in a preliminary issue decision in a related Tribunal file 18-011978/AABS that, for some reason unknown to the respondent, the Tribunal cancelled.

4I ordered a stay of the decision pending the hearing in 18-011978/AABS because the issues in this matter were essentially the same issues in 18-011978/AABS, which was heard by me on January 23 to 27, 2023. The parties agreed that the evidence from both this hearing and 18-11978/AABS is applicable to both files.

5Based on testimony and the evidence filed from both files, I find that the respondent did not unreasonably delay the payment of any medical or rehabilitation benefits. The treatment plans initially in issue are not deemed incurred and the applicant is not entitled to a Reg.664 award.

ISSUES

6At the hearing, the parties clarified that the issues I am to determine are not as set out in the case conference Order, but are as follows:

1. Is the applicant deemed to have incurred the following treatment that was in issue in this matter?

i. Is the applicant entitled to $5,886.29 for home modification assessment, proposed by Accessible Daily Living in a treatment plan / submitted February 11, 2019 and denied March 4, 2019?

ii. Is the applicant entitled to $3,332.41 for occupational therapy, proposed by Innovative Occupational Therapy in a treatment plan submitted July 2, 2020 and denied July 17, 2020?

iii. Is the applicant entitled to $1,188.87 for physiotherapy, proposed by Bodymed Rehabilitation Centre Inc. in a treatment plan submitted September 21, 2020 and denied October 8, 2020? (withdrawn)

iv. Is the applicant entitled to $1,188.87 for occupational therapy services, proposed by Innovative Occupational Therapy in a treatment plan submitted September 21, 2020 and denied October 8, 2020?

v. Is the applicant entitled to $3,055.35 for physiotherapy medical services, proposed by Bodymed Rehabilitation Centre Inc. in a treatment plan submitted October 9, 2020 and denied October 23, 2020?

vi. Is the applicant entitled to $997.50 for occupational therapy, proposed by Innovative Occupational Therapy Services in a treatment plan submitted October 16, 2020 and denied November 3, 2020?

vii. Is the applicant entitled to $726.04 for physiotherapy, proposed by Bodymed Rehabilitation Centre Inc. in a treatment plan submitted October 23, 2020 and denied November 3, 2020?

viii. Is the applicant entitled to $3,292.33 for occupational therapy, proposed by Innovative Occupational Therapy Services in a treatment plan submitted November 10, 2020 and denied December 7, 20201?

2. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

3. Is the applicant entitled to interest on any overdue payment of benefits?

ANALYSIS

7Under s.3(8) of the Schedule, if I find that the applicant did not obtain the treatment set out in the treatment plans listed above because the respondent unreasonably withheld or delayed payment of the medical benefits claimed, I may, for the purpose of determining the applicant’s entitlement to the benefit, deem the expenses to have been incurred.

8If I find that the respondent unreasonably withheld or delayed payments, I may, in addition to awarding the benefits and interest to which the applicant is entitled under the Schedule, award a lump sum of up to 50 percent of the amount to which the applicant was entitled at the time of the award together with interest on all amounts then owing to her (“Reg. 664 award”).

9There is no dispute that the treatment plans were denied because the applicant had exhausted her policy limits for non-catastrophic determination. The issues of whether the treatment plans are deemed incurred and if the respondent unreasonably withheld or delayed payment of the treatment plans is dependant on why it took the respondent from 2018 to 2021 to accept that the applicant sustained a catastrophic impairment.

The was no unreasonable withholding or delayed payment of the treatment plans

10The applicant applied for catastrophic determination under two separate applications (“OCF-19s”) in 2018: the OCF-19 of Dr. Newton dated May 3, 2018 and the OCF-19 dated August 6, 2018 of Dr. Kumbhare.

11The respondent submitted that it set up a number of insurer’s examinations under s.44 and s.45 of the Schedule (“IEs” ) to determine if the applicant sustained a catastrophic impairment, but the applicant refused to attend the IEs without any reasonable excuse. The applicant submitted that none of the IEs scheduled prior to 2021 complied with the Human Rights Code or the notice requirements in the Schedule. Therefore, she was not required to attend them.

12Under s.45 of the Schedule, within ten business days after receiving the catastrophic impairment determination application (“OCF-19”), an insurer is required to notify the insured person of its decision and the medical reasons, and whether it requires an IE under s. 44. Section 44 of the Schedule gives the respondent the right to require the applicant to attend IEs as long as the following conditions are satisfied:

i. IEs are to be conducted not more often that is reasonably necessary;

ii. IEs are to be conducted by regulated health professionals or people who have expertise in vocational rehabilitation. Under s.45, catastrophic impairment IEs shall be conducted only by a physician who may be assisted by such other regulated health professionals as he or she may reasonably require or, if the insured person sustained a traumatic brain impairment, the IE may be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require.

iii. The choice of IE assessor is the respondent’s as set out in 16-003144 v Cumis General Insurance Company, 2017 CanLII 22315 (ON LAT) (16-003144 v Cumis) and paragraph 11 of R.J. v Economical Insurance Company, 2020 CanLII 80296 (ON LAT);

iv. The IEs are to be scheduled for a day, time, and place convenient to the applicant;

v. The respondent is required to provide notice of the IE to the applicant five or more business days before the IE.

vi. The IE notice is required to provide the applicant with the medical and any other reasons for the IE, whether she was required to attend and if so, the day, time and location of the IE and the name of the IE assessors, their regulated health profession, and their titles and designations indicating their specialization, if any.

13As noted in 16-003144 v Cumis, IEs are an invasive procedure, but must be balanced with respondent’s right to assess an insured person who has put their medical condition into issue. Because IEs are such an invasion on a person’s privacy, historically the case law dealing with failure to attend IEs has applied the conditions set out under s.44 fairly strictly against an insurer. Where the notice requirements have not been complied with or the number and type of IEs is excessive, there was no requirement for an insured person to attend IEs. I agree with this reasoning.

14At the applicant’s request, the respondent scheduled its multidisciplinary catastrophic IEs in conjunction with its IEs to assess the applicant’s entitlement to IRBs. The IE assessors were asked to address both catastrophic impairment and IRBs. The respondent retained the following assessment companies to arrange for both sets of IEs as follows:

Assessment company	Time period
AGS Rehab Solutions (“AGS”)	May 2018 to August 2018
Encompass Medical (“Encompass”)	August 2018 to October 2018
AssessMed	April 2021 to December 2021

i. The applicant refused to attend any of the assessments until 2021. A number of the issues that the applicant had with the IEs are as follows: Whether the respondent provided the medical and other reasons for the IEs;

ii. Whether the respondent complied with the Schedule when the IEs were booked through a third party assessment company;

iii. Whether the respondent complied with the Schedule by directing the applicant to send any medical documentation to the third party assessment company;

iv. Whether the number and type of assessments were reasonable and necessary;

The catastrophic impairment IE notices ultimately did not provide the medical reasons for the IEs

15There is no issue that the IE notices in question advised the applicant whether she was required to attend the IE and provided the day, time and location of the IE. All of the IE notices contained the name of each IE assessor, their regulated health profession, titles and designations indicating their specialization. The applicant submits that she sought information on the medical and other reasons for the IEs and it was not provided.

16According to the reconsideration decision of M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (M.B. v Aviva) an insurer satisfies its obligation to provide its medical reasons by explaining its decision with reference to the insured’s medical condition. The medical 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. The 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.

17The respondent provided the applicant with IE notices dated March 13, 2017 requesting the applicant attend at a number of IEs for the purpose of determining her entitlement to ongoing IRBs and to a treatment plan. The notice pointed out that it had been six months since the applicant’s last assessment, she had undergone a number of different treatments since then including massage and physiotherapy, and the respondent required the IEs as a second opinion to determine if she continued to meet the test for IRBs and whether further treatment was reasonably required as a result of the accident. I determined in 18-011978/AABS, for the reasons stated in that decision, that the notice complied with the requirements in the Schedule and were clear and sufficient to allow an unsophisticated person to know why the IE was requested and decide whether or not to attend.

18The respondent was advised in early 2018 that the applicant was applying for catastrophic impairment determination. The respondent partially approved a treatment plan dated October 23, 2017 prepared by Dr. Harold Becker, general practitioner, for a multidisciplinary catastrophic determination assessment. The respondent delayed the IRB IE assessments pending receipt of the OCF-19 catastrophic impairment application (“OCF-19”). The reason was to avoid a duplication of IE assessments – one set of IEs for IRBs and another set of IEs for catastrophic impairment. The respondent followed up on the results of the catastrophic impairment assessments it had approved and was advised by the applicant’s law clerk on April 10, 2018, that she was withdrawing her treatment plan from Omega Medical and sought approval of a treatment plan from Ross Rehab to conduct the s.25 catastrophic impairment assessments. The respondent did not receive an OCF-19 until either May 7, 2018 when the applicant’s law clerk claimed she faxed it the respondent, or May 15, 2018 when it was emailed to the respondent.

19The respondent advised the applicant on May 16, 2018 that in order to assist the respondent in making a catastrophic determination, it required her to attend for section 44 IE assessments with AGS. She would be advised as to the dates, times and locations and names of the assessors under separate cover. Although the notice was sent within 10 days of the respondent’s receipt of the OCF-19, the respondent did not advise whether or not it determined the applicant was catastrophically impaired or provide medical reasons for why an IE was being requested.

20The respondent provided an IE notice dated June 13, 2018 for both IRBs and catastrophic impairment. The other reasons for requesting the IEs were very clear in that notice and the subsequent notices. The notices to the applicant, including the June 13, 2018 notice, state the reason that she was to be assessed was for the purpose of determining whether she sustained a catastrophic impairment and whether she was entitled to IRBs. The respondent advised why various assessors were conducting the IEs. For example, the notice advised that an occupational therapy assessment was required for determining if the applicant sustained a catastrophic impairment in order to provide corollary information to the mental behavioural assessors, to assess the applicant’s function in her home, and to complete a GOS and score it for the purpose of rating under criterion 6 in the context of the neurology and neurocognitive diagnosis and impairments. Although the applicant was diagnosed with a traumatic brain injury, the notice does not state that the IEs were required to address that diagnosis, nor who made it. In fact, none of the notices refer to a medical diagnosis or anyone who made a diagnosis pertaining to the applicant. They speak only to general medical conditions such as a neurological or cognitive impairment. Accordingly, I am not convinced the notices for the catastrophic impairment IEs provide enough medical information specific to the applicant to allow her to determine whether or not to attend the assessments.

21No medical reason specific to the applicant was given until the applicant was provided with a copy of Dr. Castiglione’s file review and catastrophic impairment assessment plan report dated June 11, 2018.. Dr. Castiglione’s report was provided on February 1, 2019. The applicant was also provided with clear medical reasons in the respondent’s IE notice dated May 5, 2021. That notice stated that Dr. Czok, physiatrist, had rendered an opinion in August 2016 that the applicant's prognosis for recovery from her musculoskeletal injuries, multiple rib fractures and sprain strain was considered fairly good and that her intra abdominal injuries could have a prolonged recovery of up to 12 months. Dr. Walsh, psychiatrist, thought that with appropriate intervention, the applicant would be able to return to her pre accident employment within three to six months. It was now over four years and the applicant had undergone several treatments since then. Given these opinions, it was reasonable to conclude that the applicant’s daily functioning should have improved by this time. Without any medical documentation, there was not enough information for the respondent to conclude the applicant sustained a catastrophic impairment.

22The notice also advised that the IEs were also required to determine if the applicant met the criteria for IRBs on the basis she suffered a complete inability to perform any occupation for which she was reasonably suited by way of education training and experience. The notice clearly referred to the applicant’s medical condition as a result of the accident, her expected prognosis and lack of information as to whether those prognoses were still correct. These are clear medical reasons that allowed an unsophisticated person to determine whether or not to attend the IEs with full knowledge of the consequences of her failure to attend.

The number and types of IEs were not excessive

23As set out in 16-003144 v Cumis, under s.44 of the Schedule, an insurer may require insurer’s examinations by the health professionals of its choice, but this right must be balanced with the insured person’s privacy rights. In balancing these rights, one of the factors to consider is there must be a reasonable nexus between the type of examination requested and the claimed impairments.

24The applicant submitted that the number of IEs were set out to intimidate her and cause her to avoid the assessments and thus, avoid claiming benefits. However, I was pointed to no evidence to support the submission.

25The applicant submitted that there was a determination made by three s.25 assessors that she met the criteria for catastrophic impairment under criterion 8: a physiatrist, a neuropsychologist, and an occupational therapist. Further, Dr. Kumbhare, physiatrist, did a whole person impairment (“WPI”) percentage assessment to determine catastrophic impairment under s.3(2)(e) of the Schedule in force at the time of the accident. This type of assessment assigns a WPI percentage for impairment to the body plus a WPI percentage for psychological impairment. Dr. Kumbhare concluded that the applicant did not meet the WPI percentage requirements for catastrophic impairment. Therefore, the respondent only required three assessors. I disagree.

26The applicant’s May 3, 2018 OCF-19 was prepared by her family physician, Dr. Barbara Newton, who determined that the applicant sustained a catastrophic impairment under criterion 6 (severe disability from brain injury under the Glasgow Outcome Scale), criterion 7 (55% or more whole person impairment), and criterion 8 (class 4 marked or class 5 severe mental or behavioural impairment). The evidence was that the respondent consulted with Dr. Castiglione to determine what assessments to conduct. He conducted a file review and made recommendations as to the catastrophic assessments in his June 11, 2018 report that were similar to those recommended by the applicant’s own proposed assessor, Dr. Harold Becker, in his treatment plan dated October 23, 2017. Both recommended assessments by a neurologist, physiatrist or orthopaedic surgeon, psychologist or psychiatrist, occupational therapist, neuropsychologist and a general practitioner. Dr. Castiglione also recommended a general surgeon assess the applicant. Despite Dr. Castiglione’s recommendation, the evidence was that the respondent was trying to reduce the number of IEs the applicant was required to attend.

27The applicant submits that I should not give much weight to the type of assessments Dr. Castiglione recommended because he did not have all of the reports, in particular, Dr. Fulton’s neuropsychological report. I do not find that would have substantially changed the number or type of assessments requested because the following IEs were reasonably necessary to address the following injuries and complaints:

1. An orthopaedic assessment to address the applicant’s broken ribs and musculoskeletal pain complaints including knee pain under criteria s.3(2)(e) (“criterion 7”) of the Schedule in force as of November 24, 2015 or a 55% whole person impairment (“WPI”);

2. A neurological assessment to address the C8 radiculopathy (as reported by Dr. Gaspar Israelian, neurologist, on November 26, 2015) under criterion 7;

3. The psychological/psychiatric and occupational therapy assessments were reasonable to address the applicant’s chronic pain under s. 3(2)(f) (“criterion 8”) of the Schedule in force as of November 24, 2015, whether she had a class 4 marked or class 5 severe mental or behavioural impairment;

4. Neuropsychological and neurological assessments to address cognitive issues and mild concussion (as diagnosed by Dr. Fulton) under criteria 7, 8 and s.3(2)(d)(ii) (“criteria 6”) of the Schedule;

5. Psychiatric and occupational therapy assessments to address the mental and behavioural disorders under criterion 8 and the WPI% for psychological impairment under criterion 7;

6. A general surgeon to address the splenectomy and the second hernia rupture allegedly caused by an IE assessor under criteria 7.

28With the exception of the occupational therapist, the foregoing health practitioners are all qualified to assess the applicant for the conditions listed. The occupational therapist was necessary and qualified to provide corollary information on the applicant’s ability to function in the four spheres of function under criterion 8. I find that there was a nexus between the described injuries and complaints and the requested IEs and given that there was no evidence that a report accompanied Dr. Newton’s OCF-19, the assessments were reasonably necessary.

29Further, the number of assessments the applicant underwent from her own assessors does not support her submission that too many assessments were detrimental to her health. The applicant underwent her own occupational therapy assessments by two different occupational therapists: Maria Ross for the purpose of disputing IRBs; and Afsha Hussain, for the purpose of determining catastrophic impairment. This contradicts her submission that the insurer should have had one occupational therapist doing both the functional abilities assessment for IRBs and the catastrophic assessment. She also underwent two neuropsychological assessments with her own assessors, Dr. Fulton and Dr. McKay. Again, the duplication undermines the applicant’s submissions.

30Despite my determination that the assessments were necessary for addressing the applicant’s various injuries, I also find that the respondent was trying to reduce the number of IEs to assist the applicant. This is evident from its email to Gina Greco, President of AGS, on July 23, 2018 asking for the bare minimum of IEs that could be conducted for IRBs and catastrophic impairment and whether they could be combined. Ms. Greco’s reply echoed the recommendations of Dr. Castiglione. The respondent emailed Ms. Greco again on August 3, 2018 asking if the catastrophic IE could be limited to three assessments consisting of an orthopaedic surgeon or physiatrist, a neuropsychologist or psychiatrist and an occupational therapist. AGS advised the respondent on August 10, 2018 that Dr. Castiglione could not recommend only three IEs because any less than the IEs he recommended would put him and the IE team in a compromised situation. Further, he advised it would be detrimental to the applicant to put her through a series of IEs that were inadequate for CAT determination, only to have her re-do the process once the report concludes there were insufficient assessors on file.

31Given the respondent’s efforts to reduce the number of IEs, I find that the applicant has failed to prove that the number and type of IEs requested by the respondent were excessive and designed to intimidate her.

There was no violation under the Human Rights Code

32Section.47(1) of the Human Rights Code, R.S.O. 1990, c H.19 (Code) binds the Crown and every agency of the Crown. I find that this means the Tribunal is bound by the Code because it is a Crown agency. Under s.1 of the Code, the applicant has a right to equal treatment with respect to goods and services without discrimination and under s.3 of the Code, a right to contract without discrimination. The respondent is a mutual insurance company and is, therefore, bound by the Insurance Act. However, s. 22 of the Code creates an exception to s. 1 and s. 3 of the Code where a contract of insurance makes a distinction, exclusion or preference on reasonable and bona fide a grounds because of age, sex, marital status, family status or disability. Given that s.22 of the Code specifically references insurance, I find that the Code governs the respondent’s adjustment of the claim subject to the exception in s.22 of the Code.

33The applicant’s right to equal treatment and against discrimination, including adverse discrimination, under s.1 of the Code is infringed if a requirement, qualification or factor exists that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the applicant is a member, such as a person under a disability. The applicant has the onus to show on a balance of probabilities that the actions or service provided by the respondent created an adverse distinction based on an enumerated or analogous ground and that the disadvantage is discriminatory because it perpetuates prejudice or stereotypes.

34According to the Human Right’s Commission policy s.8.4, once a prima facie case of discrimination is found to exist, the legal burden shifts to the person responsible for accommodation to show that the discrimination is justifiable. First and foremost, the applicant has the burden of showing that discrimination exists. I am not satisfied that the applicant has shown that she was discriminated against. The applicant provided no evidence that her treatment by the respondent was different from any other accident benefit claimant because of her psychological impairments. Nor have I been provided with any evidence or support that s.44 or s.45 of the Schedule discriminate against accident benefit claimants who have psychological impairments, vehicle phobia or concerns with leaving their homes.

35If I am wrong and the IE process in s.44 and 45 of the Schedule discriminates against people such as the applicant, that does not mean that the respondent violated the applicant’s human rights. According to the Human Rights Commission policy s.8.6, the person with a disability is required to advise the accommodation provider of the disability and make their needs known to the best of their ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation.

36The respondent submitted that it made numerous requests for the applicant to identify those disabilities and what type of accommodation was needed. The applicant submits that because of her psychological disability, vehicle phobia and her concerns of leaving home, the respondent needed to accommodate her having to leave the home, travel from her home, and to interact with new people and the amount of interaction she had to have with new people. The applicant submitted that the respondent knew what the disabilities were because they were set out in the medical reports of the both the applicant’s assessors and the respondent’s IE assessors, Dr. Czok and Dr. Walsh. According to the October 4, 2017 letter from the applicant’s counsel to the respondent, the disability that required accommodation was an umbilical hernia and anxiety.

37The applicant submitted that the respondent was required to accommodate her disabilities by limiting the number of IEs she was required to attend and that she made a number of requests to the respondent asking for that accommodation. However, the requests were not identified to the respondent as an accommodation request under the Code.

38Regardless, for the reasons already given, I find that the respondent tried to and, in fact, did reduce the number of IEs the applicant was required to attend. This means that if the accommodation the applicant required was a reduction in the number of IEs conducted, then the respondent accommodated the applicant under the Code.

39The only other written accommodation needs that were made known to the respondent by the applicant was for the payment of attendant care benefits for the services provided by the applicant’s daughter and husband without having to show that they sustained an economic loss, which is a requirement under the Schedule. The applicant submitted that her family members were discriminated against by their family connection to her. However, the applicant failed to show that other claimants with disabilities whose family members provide attendant care were not required to prove an economic loss and, thus, were treated differently than the applicant and her family members. In other words, the applicant has failed to show she was treated in a discriminatory fashion. Accordingly, this part of her claim fails.

40The applicant submitted that there was a duty to consult and work collaboratively with the applicant in the adjusting process under the Code. She submits that the respondent failed to consider how to work collaboratively with the applicant to adjust her claim. I disagree. The respondent made numerous efforts to work with the applicant, and every time they did so, they were chastised by the applicant’s counsel or his staff.

41For all of these reasons, I find that the respondent did not violate the applicant’s human rights.

The treatment plans are not deemed incurred

42The respondent submitted that it did its best to accommodate the applicant and the proof is the fact that, after the applicant attended some of the CAT IEs, the respondent asked one of the IE assessors if the applicant met the definition of CAT without having to undergo any further IEs because of a report that assessor wrote with respect to the IRB benefit. The respondent cancelled the remaining IEs once the IE assessor confirmed that the applicant did meet the definition of catastrophic impairment on the basis of a mental and behavioural impairment.

43In this case, although I determined that the respondent failed to provide medical reasons for requesting the catastrophic IEs until February 2019 and at the latest until May 2021, I do not find that the catastrophic IEs were delayed because of the respondent’s actions. Even if the respondent provided a specific diagnosis or referred a specific condition, I am not convinced that she would have attended the IEs. The abundance of documentary evidence, specifically correspondence from the applicant’s counsel or his staff, shows that the applicant objected to the IE assessments being booked through assessment companies instead of directly with each IE assessor.

44The Tribunal has held on a number of occasions that neither the Schedule nor the Insurance Act prohibit an insurer from using an assessment company to schedule IEs. See: L.C. v Aviva Insurance Canada, 2020 CanLII 40331 (ON LAT) at para.30 and the reconsideration decision of 18-006654 v Royal Sun Alliance Insurance (RSA), 2019 CanLII 34605 (ON LAT) at paras. 15 to 19. I agree with the reasoning in these decisions.

45Further, a number of the IEs were cancelled, either because the assessor was ill or as a result of assessors refusing to continue with the assessment after being contacted by employees or lawyers from the law firm representing the applicant. According to Ms. Greco’s email dated August 10, 2018, Dr. Castiglione advised AGS that under the circumstances, it was not in his best interest to do a catastrophic assessment of the applicant. Ms. Greco advised that she lost her psychiatric, general surgeon and neuropsychological assessors because of the numerous calls and letters from the applicant’s counsel, including a complaint to neuropsychologist Dr. Dowhaniuk’s college. Some of the letters from the applicant’s counsel sent directly to the proposed assessors have a very adversarial tone and seem to contain an implied threat to contact the assessor’s College with complaints if the assessor did not answer or respond to the applicant’s counsel’s inquiries. I find that the correspondence to the proposed IE assessors in the face of the assessors’, the assessment companies’ and the respondent’s requests to not communicate directly with them caused a number of the assessors to back out of doing the assessments, which resulted in delays when an assessment company could not find a replacement assessor. This in turn resulted in the respondent having to retain a new assessment company to arrange for the IEs. I find that these delays were not caused by the respondent, but by the applicant thorough her counsel and his staff.

46For these reasons I find that the delays in the applicant receiving treatment were not as a result of the respondent’s acting in a reprehensible, stubborn, inflexible or malicious manner.

The applicant is not entitled to a Reg 664 award.

47Under s.10 of reg. 664, I may award up to 50% of the benefits payable to the applicant if I determined that the benefits were unreasonably delayed. I may also make a Reg.664 award if I find that the respondent acted in bad faith. I agree with the Tribunal’s reasoning in [AJ] v. Security National Insurance Co., 2021 ONLAT 18-007658/AABS 2021 CanLII 35586 (ON LAT) that a party should not be penalized with an award just because a decision was not in their favour. I also agree with the reasoning that when analyzing whether an insurer’s conduct in withholding or denying a benefit warrants an award, an insurer’s behaviour must be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

48I have determined that although the medical reasons for the respondent requesting the catastrophic impairment IEs were not provided until February 2019, the delays in the catastrophic impairment IEs taking place were due to the behaviour of the applicant or her counsel. Accordingly, a delay in the approval of the treatment plans does not merit an award just because the medical reasons for the IEs were somewhat deficient. I have found that even if they were sufficient, a number of the delays are attributable to the applicant. Further, I find that the behaviour of the respondent in trying to reduce the number of IEs contradicts the applicant’s submission that the respondent acted in an excessive, imprudent, stubborn, inflexible, unyielding or immoderate manner.

49However, that does not end the matter. As set out in 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) (17-006757 v Aviva), the Tribunal may grant an award in in circumstances such as this where benefits were in dispute at the time of the application but were no longer owing by the time of the hearing. As 17-006757 v Aviva determined that awards continue to be based on the facts of the case, not simply the facts surrounding the particular issue in dispute, I must also address the applicant’s other submissions with respect to the respondent’s conduct in adjusting her claims. However, I have addressed the issue of IRBs in my decision in 18-011978/AABS, and decline to address the issue of an award associated with the claims for attendant care as that is being addressed in 17-002762/AABS.

50The applicant submits that the respondent also acted in bad faith in adjusting the applicant’s claims and that such behaviour is deserving of a special award. The particulars of the allegations are as follows:

a. The respondent’s private investigator was involved in a pedestrian hit and run with the applicant’s son-in-law while the investigator was conducting surveillance of the applicant.

b. The respondent increased surveillance activities to intimidate the applicant from claiming entitlement to accident benefits.

c. The respondent’s occupational therapy assessor, Ranu Singh, forced the applicant to perform physical activities that caused her ventral hernia repair to recur.

d. The respondent commissioned secret reports.

e. The respondent manipulated the information provided to the IE assessors.

f. The respondent failed to comply with a production order.

g. The respondent sought updated clinical notes and records;

h. The respondent contacted treatment providers without permission that it approved the treatment plans in dispute in this matter when permission to do so was withdrawn;

i. The respondent failed to provided accurate information; and

j. The respondent did not provide the applicant with an OCF-19 and explain to her the process for applying for catastrophic determination.

The injuries the applicant’s son-in-law sustained during surveillance of the applicant do not merit an award

51The applicant testified that her son-in-law was involved in a pedestrian hit-and run when he was struck by the respondent’s private investigator. As a result the son-in-law sustained a broken leg.

52The liability of a respondent is predicated on the unreasonable withholding of benefits. It was reasonable for the respondent to conduct surveillance to determine the applicant’s level of activity for reasons that are explained below. Therefore, having surveillance conducted on the applicant was not excessive, imprudent, stubborn, inflexible, unyielding or immoderate behaviour. Whether or not the investigator was negligent, and what role the respondent had in that negligence has no relationship to the unreasonable withholding of benefits. Accordingly, I find this is not reason to make an award.

There was no evidence that the respondent increased surveillance to intimidate the applicant

53The applicant submitted that the only reason for the surveillance was to intimidate the applicant because it was not provided to the IE assessors. Ken Jones, an adjuster with the respondent who retained carriage of the applicant’s file on May 16, 2018, testified in 18-011978/AABS that he usually obtains surveillance in order to provide it to the IE assessors within one year of conducting the surveillance, but that was not done in this case. I fail to see how this proves the surveillance was to intimidate the applicant. Especially since Mr. Jones testified that he did not provide the surveillance to the IE assessors as it was too old when he was arranging the IEs. I accept his reasons, given he did not come onto the file until 2018.

54The surveillance was conducted by Whitehall Bureau and reported on in reports dated June 29, 2016, July 27, 2017, October 13, 2017, and November 6, 2017. Except for the surveillance taken in 2016, the surveillance was taken after the applicant filed an application with the Tribunal for attendant care benefits. The respondent had asked for medical information from the applicant and the response of an employee from the law office of the applicant’s legal representatives was, on October 25, 2017, to threaten the adjuster with a human rights complaint for her handling of the file in the past and for any future decisions going forward. Mr. Jones was not the file handler at the time. Considering that the matter was in litigation, that the applicant was refusing to attend at IEs or to provide updated medical information, I find that it was reasonable for the respondent to conduct surveillance of the applicant in order to determine her levels of activity and determine what assistance she required. Given this evidence, I am unable to draw an inference that the surveillance was conducted to intimidate instead of for the purpose of obtaining information or for defending the attendant care claim.

The allegations of injury by an occupational therapist do not merit a special award

55The applicant submits that the respondent’s occupational therapy assessor, Ranu Singh, forced the applicant to perform physical activities that caused her ventral hernia repair to recur.

56I agree with the respondent that, at this time, they are only allegations. The issue of what caused the herniation was not before me, although I note that Dr. Kekosz, the applicant’s physiatrist, reported on November 30, 2016 that the applicant herniated her umbilical hernia from carrying two eight pound kettle balls. In fact, the evidence is that the applicant had recurring hernias before the accident, which implies that there may be some other reason why she keeps requiring hernia repairs. In any event, if the applicant was injured as a result of the IE assessment, the applicant would have to show that the respondent’s malicious and bad faith conduct led to that result. I was not pointed to any evidence that the respondent and Ms. Singh knew of any restrictions on activity the applicant was under because of her pre-existing condition, let alone that if they did know, that together they plotted to have the applicant engage in restricted activities during the IE. In the absence of such evidence, there is no basis for me to find that the respondent wilfully or maliciously arranged for the assessment to cause a hernia. For these reasons, I am unable to find that the respondent’s request for the IE merits an award.

The retainer of Dr. Castiglione to recommend what catastrophic impairment IEs were required does not merit an award

57The applicant submits that the respondent had secret reports prepared because the respondent provided medical documents to a physician, Dr. Castiglione, and asked him what types of assessors were required for a catastrophic IE, without having him do a paper IE under s.44 and 45 of the Schedule, thereby depriving the applicant of the ability to ensure he had Dr. Fulton’s report.

58I am not aware of any prohibition in the Schedule that prevents an insurer from retaining a physician to assist it in determining what assessments to conduct and to report on those recommendations.

59Nor am I able to find that if the assessment had been an IE that Dr. Castiglione would have changed his opinion on whether a neuropsychological IE was necessary, given that the applicant went ahead with another neuropsychological assessment with Dr. McKay, despite having been assessed by Dr. Fulton. This fact suggests that if he had been aware of Dr. Fulton’s report, Dr. Castiglione, like Dr. Kumbhare, would have asked for a second opinion from a neuropsychologist other than Dr. Fulton. Accordingly, without any evidence to the contrary, I am unable to find that Dr. Castiglione’s review was malicious or reprehensible behaviour deserving of an award.

Failure to provide accurate information does not merit a special award

60As set out in Applicant vs. Portage La Prairie Mutual Insurance Company, 2019 ONLAT 18-001837/AAB, an insurer is not to be held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to punish an insurer for misconduct and to deter it and others from future similar actions. An award should be granted only where there was unreasonable behaviour by an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

61The applicant submitted that the respondent acted in bad faith by selectively producing pre-accident medical report's for its IE assessors to review without providing all of the medical documents within its possession, by providing inaccurate information and by failing to provide its surveillance to the IE assessors. The IE respondent provided the assessment clinic some medical documents, including an IE report, from the applicant’s previous accident benefit claim with the respondent for injuries she sustained in a 2013 motor vehicle accident. The applicant submitted that all of the medical reports from the 2013 accident should have been provided, not just some of them, and the respondent ought to have provided the IE assessors with the surveillance. The applicant submitted that the respondent’s failure to do so was an attempt to manipulate the IE assessors’ opinions by providing inaccurate information to them.

62The applicant also submits that the pre-accident medical reports were produced without the applicant’s consent. It appears the documents were likely obtained from another accident benefit file that the applicant had with Gore Mutual.

63I agree with the reasoning in Gupta v TD Insurance Meloche Monnex, 2021 CanLII 124062 (ON LAT) that an error in handling medical records does not merit a special award.

64The applicant submitted that Dr. Sivasubramanian listed an IE report from Dr. Louis Weisleder, orthopaedic specialist, that was from the 2013 accident, but that report was not disclosed in the productions from a PIPEDA request. I am unable to find that, because Dr. Weisleder’s report was not enclosed in the file produced by Dr. Sivasubramanian’s lawyer to the applicant’s counsel as part of a PIPEDA request, this is reason to award a special award against the respondent. I was not provided with any evidence that this was deliberate.

65Under s. 44(9)1 of the Schedule, both the insurer and the insured person are required to provide to the IE assessor such information and documents that are relevant and necessary for the review of the insured person’s medical condition. This is an equal obligation on both parties and it is not a requirement that all documentation in each parties’ possession be provided, just those relevant and necessary to the applicant’s medical condition. The reason that the obligation is on both parties and not just the insurer is that most of the relevant information on an insured person’s medical condition is within the possession or control of the insured person. In fact, this is the historical basis for the reciprocal duty of good faith.

66The applicant was provided with the contact information for submitting her documents to the assessment companies who, in turn, would provide them to the IE assessors. She had the surveillance reports and, therefore, if she felt that the respondent was being selective or not capable of submitting all the relevant documentation, the applicant had an obligation to and was capable of submitting all of the relevant documents in her and her counsel’s possession to the IEs. She had legal representation that was, based on the numerous letters filed, quite capable of making numerous PIPEDA requests and, therefore, she had all relevant documents. Based on the testimony of the IE assessment companies’ representatives, all their files were electronic. If emailing the electronic documents in the applicant’s possession via her counsel was for some reason (which was not explained or proven) mechanically untenable, the applicant could have sent a USB stick containing the relevant documents to the IE assessment companies. Having said that, the applicant clearly had no issues in filing her brief consisting of over 9,000 pages with the Tribunal. Accordingly, the applicant has provided no reasonable explanation of why s.44(9)1 of the Schedule should not apply to her.

The respondent did not fail to comply with a production order

67The applicant submits that the respondent failed to comply with a Tribunal case conference Order dated February 16, 2022. The applicant submits that because the assessment companies were the respondent’s agents, their records were required to be produced when the respondent was ordered on consent to produce copies of its correspondence and other information sent to and from Gore Mutual and each purported s. 44 insurance examiner and each billing service provider who has been identified as an assessment agency. According to the documents before me, the respondent provided copies of its correspondence with these parties. If the applicant thought something was missing, she had plenty of opportunity to bring a motion before the Tribunal to compel the respondent, the assessment companies and/or the IE assessors to produce any documents alleged to be missing from the order. Accordingly, I see no merit in this aspect of the applicant’s claim.

Seeking updated clinical notes and records does not merit a special award

68The applicant submits that in response to her requests for the respondent to accommodate her under the Code, the respondent kept asking for updated clinical notes and records. She submitted that the respondent was prohibited from doing so once the applicant was identified as a person who is discriminated against. I disagree.

69First, as set out above, I am not convinced the applicant has shown that she was discriminated against or that s.44 is discriminatory. No authority was provided by the applicant that the respondent’s obligation to continue adjusting the claim stopped if the applicant was identified as being discriminated against. On the contrary, I find that a request for production of updated medical records when the applicant has refused to attend IEs reasonably requested since 2017 as they were with respect to the applicant’s entitlement to IRBs, is more than reasonable in order to adjust the claim.

The applicant did not withdraw permission for the respondent to contact treatment providers.

70The applicant submitted that the respondent acted in a reprehensible manner by advising the applicant’s treatment providers that it approved the treatment plans in dispute in this matter when permission to do so was withdrawn. I disagree.

71There was no evidence that the applicant withdrew her permission. The applicant submitted that part 10 of the OCF-18s initially in dispute contain that withdrawal. She did not point to any particular section. I find that Part 10 actually provides permission for the respondent to communicate with the authors of the treatment plans. There is nothing in Part 10 that says consent is withdrawn if the treatment plan is denied. Given that the applicant’s entitlement was based on whether she sustained a catastrophic impairment, it is clear to even the most unsophisticated person that any change in that status would require the respondent to revisit its denials, which were based on the policy limits. Therefore, if the applicant did not want the respondent to communicate with her treatment providers, she ought to have provided a withdrawal of her consent in writing to the respondent.

Failure of the respondent to explain how to apply for catastrophic impairment does not merit an award

72The applicant submits that the respondent failed to advise her how to apply for catastrophic determination. She submits that the respondent had an obligation to do so once it saw that the applicant required attendant care beyond the $3,000 non-catastrophic limits. Under the policy of insurance the applicant has with the respondent, she was entitled to attendant care for no more than two years after the accident unless she sustained a catastrophic impairment. The respondent submits that before the two year mark was up, an OCF-18 treatment plan requesting funding for catastrophic assessments was submitted by Dr. Becker. By doing so before her attendant care benefits were no longer payable, she demonstrated that she had the knowledge of the process for catastrophic determination.

73I was not provided with the particulars of the award. If the respondent had known that a failure to advise how to apply for catastrophic impairment was a basis for the claim for a special award, it may have filed evidence in defence of the allegation.

74I agree with the applicant that the respondent ought to have advised her how to apply for catastrophic determination once her catastrophic limits were becoming exhausted. However, I have no evidence as to whether it did or not. The evidence before me was that the applicant’s policy limits for medical and rehabilitation benefits for non-catastrophic impairment were not exhausted until after she applied for catastrophic impairment. By submitting treatment plans for catastrophic impairment assessments when she did, the applicant demonstrated she knew the process. Given that under s.45(6) of the Schedule, the applicant is entitled to the payment of benefits at the catastrophic impairment rate for expenses incurred before she was determined to be catastrophically impaired, I see no prejudice to the applicant. Accordingly, I see no merit in this aspect of the claim for a special award.

No interest is payable

75As the applicant’s claims are dismissed, no interest is payable.

CONCLUSION

76The applicant’s claims are dismissed in their entirety.

Released: June 27, 2023

___________________

Deborah Neilson

Adjudicator