Hare v. Algoma Mutual Insurance Company, 2024 CanLII 40994

Citation: Hare v. Algoma Mutual Insurance Company 2024 ONLAT 23-006078/AABS-PI

Licence Appeal Tribunal File Number: 23-006078/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:

Janis Hare

Applicant

and

Algoma Mutual Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Georgina Masgras, Counsel

For the Respondent:

Philippa G. Samworth, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Janis Hare, the applicant, was involved in a motor vehicle accident on May 10, 2013, 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, Algoma Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issues to be decided are:

i. Is the applicant barred from proceeding to a hearing for issue 1 below because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

ii. Is the applicant barred from proceeding to a hearing for issue 2 below because the applicant failed to dispute their denial within the 2-year limitation period?

3The substantive issues to be decided are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

ii. Is the applicant entitled to $2,000.00 for a chiropractic assessment, proposed by Markham Chiropractic Centre in a treatment plan/OCF-18 dated March 18, 2013 and denied May 17, 2013?

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

RESULT

4The applicant is barred from proceeding to a hearing for the issues of CAT and the denial of a chiropractic assessment.

5She is not entitled to interest.

ANALYSIS

Background

6The applicant was in an automobile accident on May 10, 2013. She subsequently submitted an Application for Determination of Catastrophic Impairment (OCF-19) dated January 28, 2021 to the respondent. Between March, 2021 and January, 2022 the respondent made a number of attempts to schedule insurer examinations (IEs).

7An IE was scheduled to take place on March 11, 2022 at the applicant’s home with Ms. Dara Beacock, occupational therapist. The applicant and her two brothers were present. According to Ms. Beacock, the applicant gave her a four page questionnaire. The applicant asked Ms. Beacock to sign the questionnaire and answer these questions before the assessment. Ms. Beacock was not comfortable with signing the questionnaire. She was also uncomfortable conducting the assessment in the presence of the applicant’s brothers. Consequently, Ms. Beacock left the assessment.

8The applicant and her brother appeared at an IE on April 22, 2022 with Dr. Shahzad Shahmalak, psychiatrist. According to Dr. Shahmalak, the applicant asked him to provide his curriculum vitae to her and had a list of questions to be answered before the assessment could take place. The applicant also objected to a note-taker being in another room. The applicant did not sign Dr. Shahmalak’s consent form and left the assessment.

ANALYSIS

9Section 44(1) of the Schedule allows insurers to examine insured persons by regulated health professionals to assess the insured person’s entitlement to a benefit.

10Section 44(5) of the Schedule requires the notice of an IE to contain the following four items:

• Medical and other reasons for the examination;

• Whether attendance of the insured person is mandatory;

• The name of the person or persons conducting the examination, any regulated health profession to which they belong, titles and designation indicating their specialization, if any, in their professions;

• If the insured person must attend, then the day, time and location of the examination and, if the examination requires more than one day, the same information for the subsequent days.

11The respondent’s notices for the IEs conducted by Ms. Beacock, dated January 14, 2022, and Dr. Shahmalak, dated April 7, 2022, comply with the latter three requirements of s. 44(5). In both instances, the respondent indicated that attendance was required, provided the name of the person conducting the IE, their specialty, and professional designation. The date, time, and location of the assessment was also provided in the notices.

12The respondent submits that it provided the reasons for the assessments in the letter dated March 1, 2021. The respondent also submits that the applicant’s subsequent questions, both to the insurer and in the questionnaires given to the IE assessors, are irrelevant to the reasons for the assessment and to providing informed consent for the IEs to proceed.

13The applicant argues that the respondent provided insufficient medical reasons for the IEs. She points to her letter dated January 26, 2022 as evidence of her efforts to learn why the insurer does not accept that she is catastrophically impaired (CAT). The applicant submits that the respondent refused to answer her queries, and as such, she could not determine the reasonableness of the IEs, and therefore, was unable to consent to medical examinations.

14I note that the respondent provided these reasons in its letter dated March 1, 2021:

The insurance company does not agree that you have suffered a Catastrophic Impairment for the following reasons: The psychiatrist is indicating you sustained Under Part 4, Criteria 7 an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition, 1993, results in 55% or more impairment of the whole person. We do not believe a proper catastrophic impairment rating has been completed. With regards to Criteria 8, an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition, 1993, results in a Class 4 impairment (marked impairment) or a Class 5 impairment (extreme impairment) due to mental or behavioural disorder, there is insufficient evidence that impairments noted relate to injuries sustained in the above noted motor vehicle accident and accident benefit claim.

15These same reasons are given in the two notices to attend the IEs.

16I agree with the applicant that the first reason given by the respondent for the IEs, that it does not believe that the applicant’s psychiatrist completed a proper catastrophic impairment rating, is vague and provides no meaningful insight into why the IEs are reasonably necessary. However, the second reason for the IEs, because there is insufficient evidence to establish causation of a psychological impairment, is more substantial. In my view, a lack of evidence to establish causation of a psychological impairment constitutes sufficient justification for IEs.

17In her letter to the insurer, dated January 26, 2022, the applicant states:

The denial letter from the Insurer has stated that the insurer dose (sic) not “believe” Dr. Thornton’s OCF-19 submission that included Dr. Baird’s attached Whole Person Impairment Rating, resulted in a 55% or more impairment of the whole person in accordance with the 4^th Edition AMA Guides, yet have not told us what was wrong with the math or any aspect whatsoever of the submitted benefit application. What number did they get? The insurer must know what the number is or they could not determine that it did not result in an impairment rating of 55% or more. Without providing these essential determinants we remain prejudiced unable to address the matter and correct the math or provide further pertinent information to address this unknown and unexplained issue.

18Again, I agree that the first reason given by the respondent for the IEs, that her CAT report has an improper rating, is vague. However, the applicant does not address the causation reason for the IEs in this letter, nor in any of her submissions.

19The respondent reviewed the applicant’s CAT report and determined that there is insufficient evidence to establish that the accident caused a marked or extreme psychological impairment. Additionally, the applicant is not disputing this reason for arranging an IE. Consequently, I find that the respondent’s causation reason in the notices for examinations meet the requirement in section 44(5) of the Schedule to provide medical and other reasons for the IEs.

20Under paragraph 44(9)(2)(iii) of the Schedule, if the insured person is required to attend an IE, then the insured person shall attend the IE and submit to all reasonable examinations requested by the person conducting the examination.

21At the March 11, 2022 IE, the applicant asked Ms. Beacock to sign a four page questionnaire and to answer the questions before the examination took place. The questionnaire asks, among other things, for Ms. Beacock to identify what was wrong or improper with the applicant’s whole person impairment ratings, to provide the insurer’s questions to be answered by the IE, and to explain how the IE will impact the applicant’s impairment ratings. The applicant also presented a three page document to Ms. Beacock that explained why her brothers were at the assessment.

22In a report dated May 6, 2022, Ms. Beacock states that she was previously made aware that the applicant wanted her brothers at the IE for emotional support but that she had “indicated in writing” that the applicant’s brothers were not to be at the assessment. She also states that she was not comfortable signing the questionnaire, nor was she comfortable with conducting the assessment with the applicant’s brothers present.

23It is not clear to me that the applicant failed to submit to this IE. Ms. Beacock confirms that the applicant was present and that the applicant said she was willing to proceed. The applicant asked the assessor to sign a questionnaire and to answer questions, but there is no indication that the applicant’s participation in the assessment was conditional on completing these tasks. The applicant’s brothers were present, but Ms. Beacock has not explained why the applicant’s brothers could not be at the assessment. I acknowledge these circumstances made the assessor feel uncomfortable and that she felt that she was unable to proceed with the assessment. Even so, there is not enough here to establish that the applicant failed to submit to the IE.

24Prior to the IE with Dr. Shahmalak, the applicant signed a consent form on January 26, 2022 for this assessment and wrote “under protest and without prejudice” beside her signature. I find that this document does not constitute valid consent for this IE as it is not possible to consent “under protest.”

25At the IE with Dr. Shahmalak, the applicant provided a similar four page questionnaire to the assessor. The questionnaire asks Dr. Shahmalak to explain what was wrong or improper with the whole person impairment rating from her own CAT report, how his report would address the improper rating methods and, among other things, how this psychiatric examination would impact or change medical image based impairment ratings. The questionnaire also asked the assessor to provide his curriculum vitae and to disclose how much he was being paid for the assessment. According to the applicant, Dr. Shahmalak offered to answer questions about the assessment, but only after the assessment was completed. The applicant submits that this was insufficient for her to provide informed consent to proceed with the IE.

26I agree with the respondent in regard to these questions being irrelevant to acquiring informed consent. The applicant understood she was attending an IE. She had also been advised that there was insufficient evidence to establish causation for her psychological impairments and that this was the reason for the IE. None of her questions touch on these points. Instead, she argues that not knowing Dr. Shahmalak’s fee denies her the opportunity of providing informed consent. There is no nexus between his fee, or for that matter, between his understanding of the impairment rating in her CAT report and granting permission for the IE to proceed. In my view, the applicant has not provided a reasonable explanation for why she did not consent to this IE.

27The applicant also objected to a note taker being in another room and listening to the assessment through a telephone connection. According to the applicant’s statement, dated April 22, 2022, Dr. Shahmalak explained that this means of creating notes was necessary due to Covid-19 restrictions. The applicant did not accept this explanation because everyone was vaccinated, masked, and distanced. She then decided to leave the assessment. In my view, the applicant’s departure from the assessment was unjustified because the assessor provided an objectively valid reason for having a note taker in another room.

28The applicant has not provided a reasonable explanation for not giving her consent to proceed with the IE, nor for leaving the IE. Consequently, I find that she did not submit to the IE as required by paragraph 44(9)(2)(iii) of the Schedule.

29The Tribunal has discretionary authority to permit an insured person to apply to the Tribunal despite failing to comply with the requirement to attend an IE. Section 55 of the Schedule reads as follows:

55. (1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:

56. The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by this Regulation.

57. The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.

58. The issue in dispute relates to the insurer’s denial of liability to pay an amount under an invoice on the grounds that,

i. the insurer requested information from a provider under subsection 46.2 (1), and

ii. the insurer is unable, acting reasonably, to determine its liability for the amount payable under the invoice because the provider has not complied with the request in whole or in part. O. Reg. 44/16, s. 6.

(2) The Licence Appeal Tribunal may permit an insured person to apply despite paragraph 2 or 3 of subsection (1). O. Reg. 44/16, s. 6. (emphasis added)

(3) The Licence Appeal Tribunal may impose terms and conditions on a permission granted under subsection (2). O. Reg. 44/16, s. 6.

30The applicant makes no submissions in regard to s. 55(2) of the Schedule. I also note that the applicant has not provided a reasonable explanation for failing to submit to the IE of April 22, 2022. Having considered the circumstances of this case, I find there is an insufficient basis to permit the applicant to apply under 55(2) of the Schedule. Consequently, I further find that the applicant is barred from proceeding with this application in regard to the issue of CAT pursuant to section 55(1)(2) of the Schedule.

31Section 56 of the Schedule requires an application to the Tribunal to be commenced within two years after the insurer’s refusal to pay a benefit.

32In a letter dated May 22, 2013, the respondent advised the applicant that it does not agree to pay for a treatment plan because it is unable to determine if the proposed chiropractic assessment is reasonable and necessary. The applicant also advised that before the IE paper review takes place, the applicant would have to submit an Application for Accident Benefits (OCF-1), along with medical documentation.

33The respondent submits that the two year limitation period began in May 22, 2013 and that the applicant is time barred from adding this issue to the dispute.

34The applicant submits that this assessment was completed and medical imaging revealed cervical spine injuries related to the accident. She also submits that this assessment was added to this application as a past expense that is payable should she be determined to be CAT.

35I note that the applicant has not addressed the limitation period for disputing the denial of this OCF-18 at the Tribunal. As such, I agree with the respondent. The applicant failed to dispute the denial within the 2-year limitation period which ended in 2015. I find that the applicant is time barred from applying to the Tribunal to resolve this dispute.

Interest

36As the applicant is barred from proceeding with the issues in dispute, the insurer is not liable to pay interest pursuant to 51(2) of the Schedule.

ORDER

37The applicant is barred from proceeding to a hearing on the issues of CAT and the denial of a chiropractic assessment. She is not entitled to interest. As a result, the application is dismissed. The hearing date shall be vacated.