Volume. 4 Issue. 3 – January 22, 2020
“There could not have been any more flagrant non-compliance than this” – IE Report Excluded
“Fruit of the Poisonous Tree” – In 18-009967 v Allstate, in a confusing set of circumstances, the Applicant attended an in-person IE, despite the assessment having been set up as a paper review only. There was in fact a car sent to the Applicant’s residence to take him to the appointment, that he was so it seems anticipating. Additionally, the assessor appears to have been expecting the attendance, as he was able to conduct a 3.5 hour neuropsychological assessment.
Given that the notice indicated this to be a paper review, the Applicant appears to have never been made aware, and as a result was denied the opportunity, pursuant to the Schedule, to provide to the assessor any relevant or necessary information regarding his condition prior to the assessment which ultimately could have impacted the assessor’s assessment. Further, he was “denied the opportunity to make an informed decision about whether to attend…or not. As a result, key medical evidence was likely obtained by the respondent without [the Applicant]’s full knowledge that he did not have to attend the assessment and could in fact decline.”
“[T]his was not a trivial or technical mistake that can somehow be cured. This was a substantial error that went to the core of the main issue in dispute as [the assessor]’s subsequent Catastrophic Impairment determination, which was a paper review report, apparently relies on his in-person assessment.” Accordingly, the notice did “not specify that the purpose of the assessment was to rely upon it later in preparing another paper review report regarding a catastrophic determination – thus not providing the requisite ‘reasons for the examination’”. Absent any mention of a catastrophic assessment or requirement to attend, “there could not have been any more flagrant non-compliance with s. 44(5) than this.”
While the Schedule does not provide a specific remedy for such a breach, the Tribunal has the “power to control its own process to ensure a fair hearing”, with such a breach requiring “real consequences.” Admitting the report thus secured into evidence “would not instill public confidence and a sense of fairness in these proceedings as it was obtained without proper notice to the insured…Allowing the evidence would not result in a fair process. This was an egregious breach of the notice provisions in the Schedule and it would be manifestly unfair for the respondent to rely on that evidence.”
Although not as extreme, there was an earlier decision 18-008710 & 18-008717 v Aviva where the Tribunal exercised its power to control its process and remedied the flawed notice by excluding the IE.
In 18-009363 v Aviva, the Tribunal considered s.44 notice sufficiency across four IE notices. Two such notices were found deficient, as they did not reference any section of the Schedule. However, they were “clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the IEs even without referring to the specific section of the Schedule…There is no evidence that [the Applicant] was confused by the minor deficiency and…this minor deficiency does not absolve [the Applicant] or her representative from inaction or non-compliance.”
In a second instance, the Respondent’s IE notice provided seven reasons for the denial of a Treatment Plan. However, the Tribunal found that “the ‘medical reasons’ in this notice are nothing more than a series of generic phrases that fail to include any specific details about [the Applicant]’s condition…(and) this notice was so deficient that a request for clarification would not achieve the clarity required to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.”
Finally, given the Applicant’s prior failures to attend IEs, the Respondent in denying a Treatment Plan, sought assurances from the Applicant that she would attend a future IE, arguing that it was “reasonable to ask that the applicant confirm her availability to attend an IE before it scheduled a further IE and risked additional no-show fees.” The Tribunal disagreed, finding the position “not supported in either case law or the Schedule”, therefore the Respondent failed to provide notice of attendance required, and as a result “[the Applicant] has not failed to attend a s. 44 IE in relation to her claim for a FAE and is not statute barred from proceeding…”
Degrees of LATitude – CAT Assessments – ‘Needless Bifurcation’ Amounting to Unreasonable Costs
A Strategic Splitting of Costs – In 18-003802 v Pafco, the Tribunal considered the balance remaining of a $25,720 Catastrophic Assessment, that had been partially approved for $16,835. The Tribunal firstly found that “Part 2 of both the Psychiatric and Neuropsychological assessments in the OCF-18 are not reasonable and necessary on the basis that they are extensions of the assessments already approved but merely split into two parts to garner two payments.” This splitting of the assessment into two parts was a “needless bifurcation of tasks, amounting to an unreasonable cost to the insurer…(and) a strategic decision driven by the clinic and not by necessity or some direction in the Schedule or jurisprudence”.
A biopsychosocial assessment was found to be a duplication of the psychiatric and neuropsychiatric assessments that were already approved. Further, there was no explanation as to why the elements captured in this report “are so unique to this particular assessment and could not be gleaned from the information captured in the myriad interviews and reports (and medical documentation on file) from the other assessments.” However, a disputed FAE was allowed, agreeing that it “may be the most important part of the evaluation as each of the selected tests is an objective measure of functional loss which is the definition of ‘impairment’.”
Complete Antithesis – In 17-007962 v Scottish & York, the Vice-Chair on reconsideration upheld the Tribunal’s determination that catastrophic assessments are not included in the $50,000 medical limit, noting there to have been no significant error of law and that “Indeed, I agree with his interpretation”. Reference was made to the Vice-Chair’s earlier reconsideration in an identical case, wherein he made the same finding. He made this case available to the parties and invited submissions regarding same. Citing this earlier decision, he made it clear that “assessments are caught if they are ‘in connection with any benefit or payment.’ Critically, catastrophic impairment is a designation not a benefit.”
The Vice-Chair disagreed with the Respondent’s “submission that ‘in connection with’ is identical to ‘in respect of’. In my view, the latter phrase is much broader in its scope. The use of the term ‘connection’ limits the scope of the phrase used in s. 18(3) to something that must be connected to a benefit. The term, ‘in respect of’ would catch any procedure that was in any manner related to a benefit.”
The Respondent argued the Court of Appeal decision in Arsenault v. Dumfries Mutual, wherein they “applied a broad interpretation of the phrase ‘in respect of’ to confirm a lower court finding that the plaintiff had commenced the action beyond the limitation period.” However, the Vice-Chair found the case distinguishable, as “the current case concerns the scope of insurance coverage and funding in the context of consumer protection legislation…Rather than give the widest possible scope to language that would limit access to benefits, the consumer protection aspect of the legislation argues for a broad and liberal interpretation. The current fact situation is almost the complete antithesis of the facts in Arsenault…”.
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