Domchik v. Cumis General Insurance Company, 2024 CanLII 81201

Citation: Domchik v. Cumis General Insurance Company, 2024 ONLAT 23- 014/AABS-PI

Licence Appeal Tribunal File Number: 23-014254/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:

Felix Domchik

Applicant

and

Cumis General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Jason Singer, Counsel

For the Respondent: Peter Durant, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Felix Domchik (the “applicant”), was involved in an automobile accident on June 16, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule- Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Cumis General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding with his claim for all of the accident benefits claimed in the application as he failed to submit to an insurer’s examination under section 44 of the Schedule?

RESULT

3Section 55 of the Schedule does not bar the applicant from proceeding with his application before the Tribunal.

ANALYSIS

Parties’ Positions

4The respondent submits that the applicant failed to make himself reasonably available to insurer’s examinations (“IE”s) as required under s. 44(9)(2)(iii) of the Schedule, and that he should therefore be barred from proceeding with an application before the Tribunal. The respondent submits that it provided sufficient notice and reasons for the section 44 IEs, and that it required the examinations to determine the applicant’s entitlement to the benefits in dispute. The respondent argues that the psychological IEs were reasonably necessary and it will suffer prejudice if the applicant is allowed to proceed with his application.

5The applicant argues he attended the assessments as scheduled and complied with his obligations under section 44. He submits it is not reasonable for the respondent to assert he did not attend the assessments. The applicant argues that once completed, the respondent refused to produce the results of the IE assessments, arguing there was nothing to produce, requiring repeat assessments and terminating his benefits. The applicant submits that the notices were deficient and did not provide sufficient medical or other reasons.

The Law

6Section 44(1) of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE. This section stipulates that this must not be done more often than is “reasonably necessary.”

7Section 44(9)(2)(iii) of the Schedule requires an insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.

8The requirements for a Notice of Examination (“NOE”) are set out in section 44(5) of the Schedule:

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

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

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

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

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

9Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied.

10These provisions of the Schedule make it clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice.

Are the notices of examination compliant with s. 44(5)(a)

11The respondent must prove that a notice of examination is compliant with section 44(5) of the Schedule in order to rely on it as a basis to seek a statutory bar under section 55. In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit in dispute, and any section it relies upon. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). The reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.

Is the applicant statute-barred from proceeding to the Tribunal for non-attendance at an IE?

12The respondent submits that the applicant is statute-barred because he failed to attend a neuropsychological assessment with Dr. Gillian Rowe and a psychological assessment with Dr. Ronald Frey. The respondent argues that the results of the assessment with Dr. Rowe are inconclusive, therefore, a further psychological assessment is reasonably necessary.

13The applicant argues that he attended all the assessments, the respondent unreasonably withheld IE assessment reports and payments under s.36 and 37 of the Schedule, and the notices for Dr. Frey’s assessments were deficient.

14I agree with the applicant and find that the notices for Dr. Frey’s assessments were deficient and the applicant may proceed with his application to the Tribunal.

Non-Attendance at IE’s

15The respondent argues that the applicant didn’t comply with s.44 in relation to his non-participation at assessments with Dr. Rowe and Dr. Frey. The respondent relies on the neuropsychological report of Dr. Rowe dated March 21, 2023 and the addendum report of Dr. Frey dated September 26, 2023. The respondent also relies on the applicant’s non-attendance at a rescheduled examination with Dr. Frey on November 24, 2023.

16The neuropsychological report of Dr. Rowe indicates that although the applicant attended on several occasions for the examination with the assistance of a Russian interpreter, the results were inconclusive, due to the applicant’s limited participation in the assessment. Dr. Rowe does not specify which tasks the applicant was unable to complete. Dr. Rowe further indicates that the applicant’s behaviour may have been caused by pain, fatigue, anxiety, or concern regarding his cognitive abilities.

17Although the applicant attended the neuropsychological evaluation, the respondent argues the attendance was noncompliant because the applicant refused to answer questions about his family, medical history and his mental health. The respondent further submits the applicant was angry, argumentative, frequently interrupted and refused to engage in tasks stating, “this is too hard” or “I don’t like this, find something else.” The applicant also refused to sign a consent to obtain collateral information from his son.

18The respondent has not produced the psychological report of Dr. Frey. In an addendum report dated September 26, 2023, Dr. Frey explains he was unable to complete the psychometric component of the evaluation because the applicant was unable to answer questions. However, Dr. Frey does not specify exactly which questions the applicant was unable to answer. The applicant told Dr. Frey he was not feeling well and he didn’t know how to answer the questions.

19The respondent argues that the applicant ended the assessment with Dr. Frey on July 20, 2023 early after two hours because he was cold and tired. The respondent rescheduled the assessment for August 24, 2023 which the applicant attended but he left the assessment early after answering four questions.

20The applicant argues that he attended psychological evaluations with Dr. Frey on July 20, 2023 and August 24, 2023 and participated to the best of his abilities. The applicant submits that Dr. Frey ended the assessments early because the applicant was tired and not feeling well. The applicant argues that the respondent unreasonably suspended his IRB on August 30, 2023 for non-compliance.

21The respondent argues that the applicant has not provided an explanation for his non-attendance at a further rescheduled IE on November 24, 2023 with Dr. Frey. The respondent advised the applicant by letter dated November 28, 2023 that his IRB was stopped due to his non-compliance.

22The respondent has not provided many particulars regarding the specific questions and tasks the applicant refused to answer or complete. It seems unlikely that the evaluation would continue for several days if the applicant was not participating in any way with the assessors. In addition to a lengthy neuropsychological assessment over several days, the applicant completed another 2 hours of psychological evaluation with Dr. Frey.

23The applicant attended a neuropsychological assessment as part of a series of multidisciplinary IEs to determine his entitlement to post-104 IRB’s. In addition, the applicant attended a psychological assessment regarding his entitlement to post-104 IRB’s and medical and rehabilitation benefits. The respondent submits that the applicant’s non-compliance with s.44 in relation to his non-attendance at the neuropsychological and psychological assessments prevents him from disputing his entitlement to post-104 IRB’s and medical and rehabilitation benefits.

24The respondent has submitted that the applicant failed to attend the IE assessments. Based on the evidence, I find that the applicant has attended two sets of neuropsychological and psychological section 44 IEs. While the assessments may not have been optimal from the respondent’s perspective, in my view the respondent has not shown that a third psychological assessment is reasonably necessary pursuant to s.44(1). Section 44(1) specifically states that IEs should not take place more often than reasonably necessary.

25On the other hand, I agree with the respondent that the applicant did not participate in every task required to complete the neuropsychological evaluation or psychometric component of the psychological evaluation. The applicant has submitted that he participated in the IE assessments to the best of his ability, but in my view, he has not provided a reasonable explanation for not fully participating in every task requested of him. The respondent’s position in this litigation raises the larger concern that insured persons who may be vulnerable due to psychological impairments could be barred from proceeding with their claims if they experience difficulties during the s.44 examination process. Difficulties in answering questions during the examination does not constitute non-compliance with a s.44 request.

Did the respondent comply with s.44(5) of the Schedule?

26The applicant submits that two of the Notices of Examination dated July 25, 2023 and November 9, 2023 are not in compliance with s.44 because the respondent did not divulge the fact that the applicant attended assessments with Dr. Frey and the insurer suspended his IRB. The notices do not explain why Dr. Frey’s prior assessments were not sufficient.

27The respondent submits that since Dr. Rowe’s findings were inconclusive, the respondent required the applicant to attend a psychological evaluation with Dr. Frey. The notices refer to the applicant’s non-participation in the assessment with Dr. Rowe and whether his non-compliance is a result of psychological concerns. The respondent further stated the reason for the psychological evaluation is to determine the applicant’s entitlement to post 104 IRBs and medical and rehabilitation benefits.

28Despite the applicant having attended several days of examination with Dr. Rowe and Dr. Frey, the respondent stated the same reasons for requesting a further psychological examination on November 24, 2023. In all of the respondent’s notices, the respondent notes the same rationale without mentioning the further examinations with Dr. Frey. The respondent did not provide an explanation for the applicant to understand what was missing after his attendance at the psychological assessment. In light of the applicant’s attendances at two days of psychological examination, I find the notices were deficient in providing a medical or other reasons for the repetitive psychological assessments and in only referring to the earlier neuropsychological assessment.

29I find the respondent’s arguments faulty in respect to the applicant’s entitlement to medical and rehabilitation benefits. First, the neuropsychological assessment was arranged by the respondent to determine the applicant’s entitlement to post-104 IRBs. This assessment did not determine the applicant’s entitlement to medical and rehabilitation benefits. In the respondent’s notices, the reason for the psychological assessment was to provide an explanation for the applicant’s non-participation in the neuropsychological assessment. The notices do not refer to a denied treatment plan or even the type of medical and rehabilitation benefit to be addressed by the psychological assessment. In particular, the respondent has not explained the reason for a psychological assessment in regard to the disputed plan for physiotherapy services.

30I find the notice letters dated July 25, 2023 and November 9, 2023 did not meet the requirements of section 44 because they, individually and collectively, fail to provide adequate reasons to support the need for the repetitive IEs or to assist the applicant in determining whether he should attend. Given that the notices did not comply with section 44(5), the respondent cannot rely on the remedy available in section 55 of the Schedule to bar the applicant’s application from proceeding before the Tribunal.

31Having found the notices deficient, it is not necessary for me to consider whether the IE scheduled for November 24, 2023 was reasonably necessary or whether the applicant had a reasonable explanation for his non-attendance.

32For the reasons above, I find that the applicant is not precluded from applying to the Tribunal.

ORDER

33The applicant may proceed with his application to the Tribunal.