Applicant has 'reasonable explanation' for failing to attend IE - RW and The Co-operators, 2018 CanLII 13179 ON LAT 17-005447

June 10, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

RW and The Co-operators, 2018 CanLII 13179 ON LAT 17-005447

Date of Decision: March 7, 2018
Heard Before: Adjudicator Christopher A. Ferguson

IRB and DUTY TO PARTICIPATE IN IE: did applicant comply with duty to attend IE; what is a ‘reasonable’ reason to refuse to attend; definition of ‘reasonable explanation’;

RW was injured in a car accident on December 9, 2014 and sought benefits pursuant to the Schedule from Co-operators. RW then applied to the LAT when the disputed benefits were denied. RWclaimed IRBs which the insurer ultimately approved, after a series of insurer’s examinations IEs.

The dispute at hand involves a period during which Co-operators argues that RW was not complying with his obligation to participate in a neuropsychological IE. Co-operators is invoking its right to refuse payment of benefits during any period of non-compliance with the Schedule’s requirements.

Issues:

1. Is RW entitled to receive an IRB of $400.00 per week for the period February 17, 2017 to April 5, 2017?
2. Is Co-operators liable to pay an award because it unreasonably withheld or delayed payments to RW?
3. Is RW entitled to interest on any overdue payment of benefits?

Results:

1. RW is entitled to IRB claimed for the period February 17, 2017 to April 5, 2017.
2. Co-operators is not liable to pay an award to RW.
3. RW is entitled to interest on overdue payments from Co-operators, for the amount owing on the suspended IRB, at the prescribed rate.

REASONS

The sole dispute is whether Co-operators may withhold IRB payments for a period during which it alleges RW failed to comply with his obligation under the Schedule to attend an insurer’s examination (IE).

The parties agree that:

1. RW was scheduled for a neuropsychological IE on January 19, 2017, and showed up for the appointment.
2. At the IE venue, RW raised concerns when informed that his wife would not be allowed into the examination room during the IE, and that a transcriptionist would be present during the medical examination.
3. RW contacted his legal representative by telephone to get advice on how to proceed. His legal representative made attempts to reach the insurer and also spoke with the “assessment company” to try to resolve the situation.
4. The parties and the IE providers were unable to resolve RW’s concerns, and eventually departed the premises. The IE did not proceed.
5. RW attended a rescheduled neuropsychological IE on April 6, 2017. His wife did not accompany him into the examination and a transcriptionist was present to record the examination.

The Schedule governs IEs, and among other things permits an insurer to require an insured person to be examined by one or more regulated health professionals determine whether the insured continues to be entitled to a specific benefit, as in this case; sets out the notice required for IEs, which includes the medical and other reasons for the examination and the name(s) of the person(s) who will conduct the examination, with their medical credentials; and requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner.

The Schedule prescribes the consequences to the insured person if he fails to attend an IE: the insurer may determine that the insured person is no longer entitled to the specified benefit and it may refuse to pay the specified benefit relating to the period during which the insured person failed to comply with. The Schedule also requires the insurer to pay all amounts withheld during a period of non-compliance if an insured person provides a reasonable explanation for not complying.

The onus is on the insured person to establish a reasonable explanation for non-attendance.

In this case the evidence from both sides is clear that RW did not fully submit to the IE on January 19, 2017. RW has offered no argument that there was anything unreasonable the approach or methods in the examination itself.

The Adjudicator then set out to determine whether or not an explanation is “reasonable? Following the reasoning in Horvath v Allstate where the arbitrator provided a summary of the case law and outlined the following principles which govern the interpretation of the words "reasonable explanation" in the Schedule:

1. An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
2. The onus is on the insured person to establish a "reasonable explanation." Ignorance of the law alone is not a "reasonable explanation."
3. The test of "reasonable explanation" is both a subjective and objective test that should take account of both personal characteristics and a "reasonable person" standard.
4. The lack of prejudice to the insurer does not make an explanation automatically reasonable.
5. An assessment of reasonableness includes a balancing of the prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.

Does RW have a reasonable explanation for not submitting to the IE of January 19?

RW argues that he has a reasonable explanation for not complying with the Schedule:

1. Co-operators did not notify him of policies respecting the presence of family members in examinations or that a transcriptionist would be present. He indicates that he requested the presence of a family member in IEs in an e-mailed message dated November 29, 2016 and got no follow-up from Co-operators. The resulting surprise, anxiety and confusion on his part contributed to the failure of the IE to proceed. He effectively argues that this failure to notify him makes his non-compliance reasonable under the circumstances.
2. His stress, anxiety and other issues lead him to need the presence of a family member during medical examinations.
3. He and his legal counsel made immediate, on-the-spot efforts to reach Co-operators to resolve an apparent impasse with the IE physician, demonstrating a good-faith effort to comply with s.44(9).
4. The IE physician left the premises first, and without telling him, effectively cancelling the examination: RW did not simply abandon the appointment.
5. RW also cites his attendance at a rescheduled IE on April 6, 2017 as evidence that he complied with his obligations under the Schedule.

Co-operators contends that RW did not have a reasonable explanation for his non-compliance with s.44(9) of the Schedule.

1. It has no obligation to notify an applicant of the procedures and policies that will be followed by medical practitioners in IEs nor does it have an obligation to seek the reasons behind any IE-related demands by applicants: the onus is on RW to provide reasons for any request or demand.
2. RW does not produce any evidence, beyond an assertion of his personal feelings, of his need to have his spouse present during the examination. Co-operators asserts that this is insufficient, and that RW needs medical evidence to corroborate his need to be accompanied by his spouse (or an aide or attendant) during the examination, citing Rodriguez v. Wawanesa.
3. RW’s attempt to insist on his spouse’s presence in the examination room is unreasonable and not an explanation for not cooperating with the IE, given that:
   1. It is valid clinical procedure, supported by medical research, to conduct neuro-psychological examinations with patients unaccompanied by persons whose presence might influence answers to clinical questions.  This is attested to in Co-operators’s submissions and is unchallenged by RW.
   2. The Schedule does not support RW’s attempt to effectively set conditions on how IEs are conducted by insisting of pre-conditions for his cooperation.
4. RW has no reasonable explanation for his objection to having a transcriptionist present during the examination, and does not deny that presence of transcriptionists, chaperones and other non-medical personnel at medical examinations is a common, accepted practice.
5. RW’s argument that the doctor’s departure prevented the examination from proceeding and should be considered as part of his reasonable excuses is disingenuous.  The Doctor engaged with RW, explained her policies and waited for RW to speak with his legal representatives and to determine his course of action.  She left 40 minutes after the scheduled start time of the examination, having reasonably concluded that the examination was not going to happen.
6. Co-operators cites RW’s attendance at a rescheduled IE on April 6, 2017 – without his spouse in the examination and with a transcriptionist present -- as evidence that his behavior at the January appointment had no reasonable explanation.

Applying the factors in Horvath v. Allstate, the Adjudicator found that RW has a reasonable explanation for his refusal to participate in the IE of January 19, because:

1. His explanation is credible and worthy of belief.
2. RW’s personal circumstances include diagnosed psychological difficulties that lend credence to his account of personal anxiety as a key factor in his reluctance to proceed with the exam on January 19, and which make the time he took to consult with his legal advisors and to explain his concerns reasonable.
3. The Adjudicator found that RW’s personal circumstances in this case involve a real and reasonable belief by him that he would be allowed by the IE assessor to have his wife present during the exam, based on:

a.   The fact that he was allowed this courtesy at previous IEs; and,

b.   Co-operators did not advise him that his plans to be accompanied by his spouse or daughter during IEs might not be allowed.

1. I find that this belief, to which Co-operators contributed, was the source of surprise and discomfort that lead to his decision to consult his legal advisors and effectively delay the start of the IE. I am persuaded that this makes his explanation reasonable.
2. The Adjudicator was not persuaded that RW in this case should be required to provide medical substantiation for his assertion that needed the presence of a support person to undergo medical examination, or that surprise made his submitting to the examination more difficult, to be considered “reasonable”. In this case:
   1. RW attended the IE in good faith, and then raised his concerns when surprised that his expectations were not met.
   2. His legal representative contacted both Co-operators and the assessment company immediately to explain his position and seek resolution.
   3. It is unclear from the evidence that RW actually aborted the IE appointment, because he was not the first to leave the premises.
   4. RW complied with his obligations – with the same assessor and without insisting that his preferences be met – once he had the opportunity to think things over and prepare himself for the IE.

Under the circumstances of this case, and my findings above, the Adjudicator found that it would be inequitable to impose on RW of the consequences associated with non-compliance with s.44(9). The seven-week delay in completing the IE did not prejudice Co-operators’s ability to adjust the claim or defend its position, and the impact of losing seven weeks of IRBs would be disproportionate.

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