Volume. 7 Issue. 43 – November 22, 2023

This week a deep dive into a matter wherein the Tribunal was tasked with addressing IRB entitlement for two MVAs, approximately one year apart. Specifically at issue being whether the IE notices for issues in dispute were compliant with the Schedule, and if not, how to deal with the fact of the Applicant having attended multiple IEs, upon which denials were made. The Tribunal also considers whether citing the minor injury guideline as a “reason” would suffice for denial of a medical benefit.

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IEs Excluded, IRB Payable to 104 Weeks

IEs Excluded – The Applicant Taksali, in 21-004696 v Aviva, injured in MVAs dated November 18, 2018 (MVA 1) and September 12, 2019 (MVA 2), sought entitlement to Income Replacement Benefits (IRB) for both MVAs, in addition to medical benefits. Aviva paid IRB through to November 13, 2019, at which time they were terminated based upon the findings of two IEs. Taksali took the position that the Notices of Examination ( NOE) for the IEs attended “did not meet the insurer notice conditions of s. 44(5) of the Schedule and, therefore, the findings of the IEs should be disregarded.”

Aviva contended that the NOE was sufficient, and further that “even if the denial or the NOE were deficient, the fact that the applicant attended the IEs renders any argument with respect to the denials and sufficiency of notice irrelevant.”

NOE Deficient

The NOE relied upon by Aviva indicated “The disability period appears to be inconsistent with the diagnosis or mechanism of injury.” The Tribunal found that this “did not offer sufficient reasons for the applicant’s attendance at the IE pursuant to the Schedule.” The NOE did not provide “any reference to the applicant’s medical condition or any allusion to medical information that is required by the respondent…does not identify the diagnosis or any other specific conditions, situations or reasons why the IEs were required. Rather, the NOE seems to reference a standardly held theory of the usual recovery period of a soft tissue injury. This certainly does not meet the requirement of specificity to the applicant’s medical condition.”

IE Attendance Irrelevant

The Tribunal confirmed that there was “no provision for an insured to waive their right to a benefit, most especially by attending an examination at which their non-attendance would threaten their entitlement to the benefit that they are seeking. While the Schedule offers the insured the provision of appealing to the Tribunal upon the denial of a benefit due to a non-attendance at an examination, this places the insured in a position of either attending an examination for inadequate reasons or not attending, thereby incurring the immediate loss of his benefit and the financial cost of appealing to the Tribunal. This is contrary to the spirit and intent of the Schedule.”

Deficient NOE Not Cured Post IE

Further, the “insufficient notice letters are not ‘cured’ by subsequent medical reasons provided.” The Tribunal reasoned that “providing the findings from improperly procured IEs as the medical reason for the denial of the benefit cannot remedy the initial insufficiency of the NOE that led to those IEs.” In this matter, “the insufficient notice letter to the applicant led to the production of improperly procured IEs which the respondent attempted to repurpose to legitimize the improper NOE retroactively.” Further, “an insufficient s. 44 NOE cannot be cured by an IE resulting from that defective notice. To accept that it can remedy improper correspondence is to discount any value of the notices and place all of the value on the IE, whether it was legitimately scheduled or not.”

IEs Excluded From Evidence

Accordingly, the Tribunal concluded “that the notice letter of September 20, 2019 was insufficient and the right to challenge that insufficiency was not waived by the applicant’s attendance at the IEs, nor was it cured by the inclusion of the results of those IEs in the letter of November 13, 2019. I therefore find that, as the IEs themselves were improperly required, their results will not be considered in this matter”. As a result, further to s.36(6) of the Schedule, Aviva was obliged to pay IRB from the date of receipt of the Disability Certificate (OCF-3), until such time as proper notice was provided by Aviva. Given the finding with respect to the notice(s), Taksali was entitled to IRB through to the 104 week mark.

IRB for 2nd MVA Also Payable to 104 Week Mark

As would be anticipated, the NOE for IEs directed at IRB for the 2nd MVA were likewise found deficient, and again as a result the IEs were excluded and Aviva was obliged to pay through to the 104 week mark for this MVA as well, less any amounts paid or now owed as a result of the IRB claim for MVA #1.

Similar Fate For Two Medical Claims

Turning next to the claim for a psychological assessment, the Tribunal found that the denial rationale was deficient. The medical reason provided indicated “Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.” The Tribunal found that this “fails to reference any specific medical condition of the applicant, nor any connection of the proposed treatment to his medical condition. It is also apparent that the reason is a template, being repeated verbatim for the denial of physiotherapy treatment in issue in this application. … It also refers to a review of the minor injury guideline. While the Schedule contains the medical definition of the MIG, this ‘reason’ does not specify which condition of the applicant the respondent is relying upon in relation to the MIG definition.”

MIG Not a Sufficient Denial Rationale

In addition, “merely naming the minor injury guideline as a ‘reason’ for denial is problematic. Firstly, the reason is circular. In essence, what this is communicating is that the insured is in the MIG because the insured is in the MIG. Secondly, it is not clear to the unsophisticated person as to what specific medical condition this refers to.” As was the case above, “the resultant conclusions of the IE will not be considered. For reasons previously provided, I find that that the insufficiency of the notice was not waived by the applicant’s attendance at the IEs, nor was it cured by the inclusion of the results of those IEs.” Therefore, the assessment was payable upon being incurred, in accordance with Aviva v. Suarez. The same fate befell the denial of the final claim for physiotherapy, again found payable upon being incurred.

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