Compromise required by applicant and Aviva in scheduling IE appointments

January 30, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

MB v Aviva LAT 16-002325

Decision Date: December 5, 2017
Heard Before: Adjudicator Nicole Treksler                            

RECONSIDERATION

ATTENDANCE AT IE: applicant may not apply to LAT for IRBs until IE is attended; both the applicant and the respondent must compromise on appointment scheduling

MB was hurt in a car accident on November 21, 2013. She continued to work up until she underwent surgery on September 1, 2015, approximately 1 year and 9 months after the accident. After the surgery, MB was unable to work and applied and received IRBs on February 17, 2016.

After 104 weeks, the test to continue receiving IRBs becomes more stringent. Aviva informed MB that she had to attend IEs to determine her entitlement to post-104 IRBs.  Aviva scheduled the IEs in April 2016, but MB indicated that she was not available because she was in school full-time during the week and was only available on weekends.

According to Aviva, MB indicated that if the examinations were scheduled in June, irrespective of the day and time, she could arrange her schedule to attend those examinations. MB denied that she provided Aviva with such open-ended availability. She maintained that she was only available on weekends and on June 10 and 17, 2016.  MB did not attend the scheduled examinations and her benefits were suspended on June 15, 2016.

MB applied to the Tribunal regarding her entitlement to IRBs from June 21, 2016 and ongoing.

Aviva raised the following preliminary issue: According to the section 55 (2.) of the Schedule, MB is prohibited from applying to the Tribunal regarding her entitlement to IRBs because she failed to attend the scheduled June assessments.

The Arbitrator found that MB shall not apply to the Tribunal regarding her entitlement to IRBs until such time she attends the IEs for post 104 IRBs.

 MB submits that Aviva failed to provide proper notice of the assessments as there was no adequate “medical reason” for the denial listed as required by under subsection 44(5)(a).  MB submits that, “impairment identified do not appear clearly or directly caused by the accident”, was not an adequate “medical reason.”

Aviva’s position is that it has complied with section 44(5)(a), as it advised MB of the insurer’s belief that the impairment identified does not appear to be caused by the accident. Further, according to Aviva, the inadequacy of the notice was never mentioned in any of MB’s communications with them until the written hearing, depriving them of the ability to remedy the notice, if necessary.

Arbitrator Treksler found that the adequacy of notice should have been raised at the case conference or before, so that Aviva could have had the opportunity to either respond or remedy the notice, if necessary.  Given that MB only raised the adequacy of the notice for the first time in their submissions, Aviva was not given the required notice to fully respond to this issue. As such the Arbitrator would not consider the adequacy of the medical reason for this hearing.

Arbitrator Treksler then turned to the preliminary issue:

1. Is MB precluded from applying to the Tribunal regarding her entitlement to IRBs because she failed to attend insurer assessments?

Section 55 2. of the Schedule states that an insured person shall not commence a proceeding if they have not attended scheduled IEs.

The Arbitrator is left to determined from the evidence whether:

•      Aviva made reasonable efforts to schedule assessments at a convenient time for MB; and
•      MB’s failure to attend the June examinations was justified.

Section 44 of the Schedule states that Aviva “shall make reasonable efforts to schedule the examination for a day, time and location that is convenient for the insured person.” The Schedule is silent on what constitutes reasonable efforts and the parties have only provided arguments in that regard. Initially, Aviva scheduled the IEs in April 2017.  In a letter dated April 26, 2016, MB indicated she was only available on the weekends because she attends school Monday to Friday. MB’s affidavit indicated that she is willing to “attend properly scheduled IEs, so long as they reasonably accommodate [her] schedule and time constraints.”

Aviva’s position was that MB’s weekend only availability was not reasonable, as five assessments were required, and most assessors were not available on the weekend. According to Aviva’s log notes indicated that MB would make herself available in June.  In a letter dated May 17, 2016, Aviva scheduled the dates for the IEs on June 14, 23, 27, 28 and July 18, 2016. In response to that letter, MB sent a letter one week later dated May 24, 2016 advising that she was available only on the weekends and June 10 and June 17, 2016.

Aviva responded to MB on the following day by letter dated May 25, 2016 and advised that MB’s Saturday only availability was not reasonable. This May 25th letter also noted that MB’s representative had advised that MB would in fact be available in June.

The Arbitrator determined there was a miscommunication and/or misunderstanding between MB and respondent in terms of MB’s availability. It is clear that MB was willing to attend the IEs, as she had done so before for her initial entitlement to IRBs. There is no evidence that MB was trying to evade taking these assessments. The parties had been in continuous contact about MB’s schedule and availability, even though there was some miscommunication in that regard. Given this miscommunication MB’s failure to attend the IEs was justified.

According to Aviva, most of the assessors are not available on weekends.  As such, Aviva’s position is that weekend only availability is not reasonable. MB asserts that Aviva is a large insurance company and should have assessors available on weekends to accommodate applicants’ schedules. Furthermore, MB is requesting weekend assessments because she cannot miss classes because there is an 80% attendance policy in order to graduate.

Arbitrator Treklser took the view that a reasonable effort on the part of Aviva would be to schedule MB on days that the assessors are available.  The assessors are independent medical practitioners hired by Insurance Company to perform IEs.  Most professionals work Monday to Friday, 9 a.m. to 5 p.m. and it is not unreasonable to expect MB to make herself available during those hours.

In this matter, the Arbitrator was not persuaded that it is reasonable for Aviva to accommodate a weekend only availability, particularly when MB, as indicated in her affidavit, is also available in the mornings from Monday to Friday. Aviva should also attempt to be more flexible in scheduling assessments. Aviva may need to organize shorter and more frequent assessments in the mornings.

MB should arrange her schedule to attend IEs during the day from Monday to Friday. Aviva should make reasonable efforts to accommodate MB’s preferences in terms of week days and times. Aviva indicated that one out of the five assessments that MB is required to attend was available on a Saturday, but with a 2 month waiting period. If available, Aviva should make all reasonable efforts to schedule MB for this weekend assessment.

On this basis the Arbitrator found that MB shall not apply to the Tribunal regarding her post-104 claim for IRBs until she has attended the IEs.

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