Applicant Claims Sec. 44 examinations are duplication - 16-003108 v Certas Direct Insurance Company, 2018 CanLII 76433 (ON LAT)

January 28, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant Claims Sec. 44 examinations are duplication - 16-003108 v Certas Direct Insurance Company, 2018 CanLII 76433 (ON LAT)

Date of Decision: April 25, 2018
Heard Before: Adjudicator Khizer Anwar

ATTENDANT CARE and NEB: Applicant barred from proceeding on the basis of non-attendance of sec. 44 examinations

The applicant was injured in a car accident on March 20, 2014 and sought benefits from Certas pursuant to the SABs. The applicant requested funding for the following to Certas: 1) non-earner benefits; 2) attendant care benefits; and 3) chronic pain assessment, via a treatment and assessment plan (“OCF-18”). Certas denied funding for all the requests, as it held that the requests were not reasonable and necessary.

The applicant disagreed with Certas’s denial and submitted an application for dispute resolution services to the LAT.

Issues

Preliminary Issue:

1. Is the applicant barred from proceeding with issue # 3 due to alleged non-compliance with section 44 of the Schedule, for failing to attend the scheduled assessments with Dr. A, general practitioner and Dr. K, psychologist, on November 10, 2016 and November 14, 2016, respectively?

Issues in Dispute:

1. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of March 7, 2015 to date and ongoing?
2. Is the applicant entitled to attendant care benefits at the rate of $629.15 per month from March 20, 2014 to March 20, 2016?
3. Is the applicant entitled to payments for the cost of examination in the amount of $2,260.00 for a chronic pain assessment, recommended by Mount Sinai Hospital in a treatment plan dated September 26, 2016, and denied by Certas on October 4, 2016?
4. Is the applicant entitled to interest on any overdue payment of benefits?

PRELIMINARY ISSUE

Certas raises a preliminary issue on multiple counts with respect to the disputed issue # 3. Firstly, Certas argues that the applicant brought this issue to the Tribunal, prematurely, as it filed this issue with the Tribunal without giving Certas an opportunity to consider her request and determine whether the treatment plan is reasonable and necessary. Certas never denied the treatment plan prior to the applicant filing this appeal with the Tribunal. Therefore, the Tribunal should not consider this treatment plan.

Secondly, Certas contends that the applicant is in non-compliance with section 44 because she failed to attend multiple s. 44 assessments, the details of which are as follows:

1. Notice of Examination requesting a s. 44 exam for November 10, 2016 with Dr. A – letter confirming non-attendance sent to the applicant, dated November 12, 2016;
2. Notice of Examination requesting a s. 44 exam for December 15, 2016 with Dr. A – the applicant’s son advised Seiden Health on December 6, 2016 and December 12, 2016 respectively that the applicant will not be attending the examination. The notes provided by Certas also reveal that the son threatened to call the police if anyone showed at their doorstep to pick his mother up. A letter dated December 17, 2016, confirming her non-attendance was sent to the applicant, also explaining the implications of non-attendance under s.55 of the Statutory Accident Benefits Schedule (the “Schedule”).
3. Notice of Examination requesting a s. 44 exam for January 18, 2017 with Nikolaos Harmantas – the examination had to be cancelled as the applicant’s son advised that the applicant will not be attending. A letter confirming non-attendance, dated January 19, 2017, was sent to the applicant.
4. Notice of Examination requesting a s. 44 exam for January 30, 2017 with Dr. Louise Koepfler – this was requested based on the function and pain program report recommending an interdisciplinary assessment of the applicant. The examination had to be cancelled as the applicant’s son advised that the applicant would not be attending.

Certas further submits that the applicant’s legal representative agreed at the case conference to make the applicant available for these assessments and rescheduling the examinations. To date, it has not happened.

The applicant’s argument is two-fold. The applicant contends that she is not in non-compliance because:

1. Certas has already had the opportunity to address the MIG and NEB issue, and subsequently, had stopped the benefits. Hence, the requested s. 44 assessment with medical reasons of “assessing for MIG and NEB” was redundant and not warranted; and
2. Certas failed to provide proper reasoning for the examination in its notice, which the insurer is obligated to do in accordance with section 44.

The applicant submits case law from the Financial Services Commission of Ontario (FSCO) to support her position. However, I’m not bound by the FSCO case law.

Certas argues that even if the notice given by the insurer was defective it would be a moot point here because the insurer was never given the opportunity to consider this treatment plan on a good faith basis before it came before the Tribunal. There was no issue in dispute for the Tribunal to consider because the applicant included this treatment plan in the appeal “in anticipation” of a denial, not due to a real denial by Certas. In the alternative, Certas submits that it properly prompted a section 44 assessment after receiving new medical evidence, disability certificate (latest one received in August 2016, two years after receiving the one prior to this one) and a new treatment plan requesting a chronic pain assessment.

It is Certas’s position that a lengthy period of time (approximately two years) had passed between the last two in-person assessments were performed hence, a fresh section 44 assessment to understand the applicant’s medical condition in light of the new medical evidence and request for funding submitted by her is proper and reasonable.

Finding

In light of the foregoing, the Adjudicator found that the applicant is barred from proceeding with issue # 3, namely the issue of chronic pain assessment, for the following reasons:

1. Bringing the issue before the Tribunal prematurely
2. Applicant was non-compliant with section 44 of the Schedule
3. S.44 assessment was reasonable
4. Medical reasons contained in the notice were sufficient
5. The applicant did not display appropriate reasons to not attend.

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