January 24, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
RD v Aviva LAT 17-000851 2017 CanLII 81579 (ON LAT)
Decision Date: November 14, 2017
Heard Before: Adjudicator Rebecca Hines
DECISION ON A PRELIMINARY ISSUE
ATTENDING EXAMINATIONS: The applicant does not have the right to determine what kind of specialist will conduct the IE; the right to require attendance at an IE is outlined in the Schedule and the choice of specialist is at the discretion of the insurer
R.D. was injured in two separate car accidents on October 21, 2014 and October 29, 2014. He applied to Aviva for SABs.
ISSUE IN DISPUTE:
- Is RD precluded from proceeding with his application for two treatment plans due to RD’s non-attendance at an occupational therapy insurer examination (“IE”) pursuant to section 55(1) of the Schedule?
- $1,496.75 for a treatment plan dated February 9, 2015 for an attendant care, denied by Aviva on February 23, 2015;
- $1,014.35 for a treatment plan dated March 9, 2015 for assistive devices, denied by Aviva on March 20, 2015.
THE PARTIES’ POSITIONS:
Aviva argues that RD has a history of non-compliance with attending IEs which has prevented Aviva from properly assessing RD’s claim. Further, RD’s conduct has interfered with Aviva’s right to procedural fairness as he has incurred his own occupational therapy assessment and has a report to rely on depriving Aviva of the right to meet the case against it.
RD contends that he has cooperated with Aviva’s requests for his attendance at IEs. Further, RD argues the assessment being requested is redundant, serves an improper purpose and its timing is suspect. Therefore, he argues the occupational therapy IE is not reasonable and necessary.
- RD cannot proceed with his appeal on the subject treatment plans until he attends an occupational therapy IE.
On February 12, 2015, RD submitted a treatment plan for an attendant care assessment to Aviva, recommended by Carol Bierbrier & Associates. On February 18, 2015, RD attended and incurred the cost of the assessment. Ms. Bierbrier recommended that RD receive occupational therapy and assistive devices.
On February 23, 2015, Aviva sent RD a Notice of Examination (“NOE”) requesting that RD attend an IE with Dr. FL, general practitioner. This was the first IE Aviva requested and its purpose was to assess whether RD’s injuries fell within MIG in order to determine future entitlement to medical benefits and attendant care.
On March 11, 2015, RD wrote to Aviva refusing to attend the occupational therapy IE because he disagreed with Aviva’s choice of assessor. RD requested that the assessment be with an occupational therapist and not a general practitioner. In his view, the purpose of the IE should have been to determine whether the attendant care assessment was reasonable – not analyze whether his impairments fell within the MIG. On March 9, 2015, RD submitted a treatment plan for assistive devices recommended by Ms. Bierbrier. Aviva sent a NOE requesting that RD attend an IE with a General Practitioner. On March 18 and 30, 2015, RD wrote to Aviva refusing to attend the IE for the same reasons outlined in his refusal letter dated March 11, 2015. RD did not attend an IE to address the subject treatment plans until July 24, 2017 following an agreement made at a case conference. Dr. AO, physiatrist, found that RD did not require occupational therapy arising from his accident-related impairments. RD contends that a further examination is not reasonably required.
The Arbitrator reviewed the law and noted that the Schedule provides the insurer with the right to assess whether an applicant is entitled to benefits. He also noted that section 55(2) of the Schedule provides that 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:
“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.:
RD is precluded from proceeding with his application on the treatment plans for the attendant care assessment and assistive devices until he attends an occupational therapy IE for the following reasons:
The Arbitrator concluded that the IEs requested by Aviva were not excessive. RD’s reason for refusing to attend the initial IE was because he felt that the IE should be conducted by an occupational therapist not a general practitioner. However, the Schedule and case law do not afford an applicant the option to pick the designation of their assessor. In addition, Aviva had the right to have RD assessed to determine whether the injuries he sustained were within the MIG. RD did not provide Aviva with clinical notes and records in support of his claim until after he refused to attend the assessment. RD’s refusal to attend IEs resulted in the delay in Aviva’s ability to properly adjust his file. RD argued that the insurer had already assessed RD’s entitlement to occupational therapy and that the assessment would be redundant. The purpose of the initial assessment was to assess the applicability of the MIG. In order to be entitled to attendant care benefits, RD’s injuries have to be outside of the MIG. Therefore, Aviva’s request for RD to be assessed for this purpose was a reasonable request.
Following a case conference held on July 28, 2017, both parties agreed that RD would attend a multi-disciplinary assessment with a physiatrist and occupational therapist to allow Aviva an opportunity to assess the subject treatment plans. Dr. O, physiatrist, concluded that an occupational therapy assessment in relation to the motor vehicle accident was not reasonable and necessary.
After attending the physiatry IE RD changed his mind about attending the occupational therapy IE. Aviva contends that a physiatrist is not the appropriate medical professional to assess occupational therapy. The Arbitrator agreed with Aviva as it is well accepted in the industry that an occupational therapist is the appropriate examiner to assess attendant care benefits.
Had RD complied with the earlier request to assess whether his injuries were minor, the logical next step would be to assess whether the attendant care assessment and assistive devices were reasonable and necessary. RD did not give Aviva the opportunity to do so. Second, RD incurred the attendant care assessment with Ms. Bierbrier before Aviva had a chance to deny it. The Arbitrator agreed with Aviva that the fact RD incurred the assessment and refused to attend its IE prejudices Aviva because it was not able to test the medical opinion of RD’s assessor.
RD states he has been cooperative in past requests for attending IEs since the date of the accident. However, out of the five IEs RD attended, one was in January 2017 and three were conducted on July 27, 2017, in response to an Order made by the Tribunal following a case conference. In the Arbitrator’s view this does not demonstrate that RD was cooperative in the past in attending IEs. The evidence submitted by Aviva demonstrated that RD had a history of non-compliance with attending past IEs. RD refused almost every request arguing that the requests were a duplication of the assessment that he was requesting or that he disagreed with the type of assessor. The records submitted show that RD did not start to cooperate until he filed an application with the Tribunal which resulted in the delay of Aviva’s ability to properly adjust RD’s entitlement to benefits.