How Technical does a Review of Reasons for Denial have to be? Not So Much

By Yalda Aziz Nov 03, 2021

Introduction

In the reconsideration decision of Aeri v. Aviva General Insurance, 2021 ONLAT 19-013288, Vice-Chair Theresa McGee addresses whether the Tribunal in a preliminary issue decision dated July 27, 2021, erred in finding that the Applicant was barred under s.55 (1)2 of the Schedule from proceeding before the Tribunal with his claims for several benefits because the adjudicator incorrectly found that the respondent met the requirement to provide “medical and any other reasons” for its Insurer’s Examination requests.

According to section 44(5)(a) of the Schedule, if the insurer requires an examination, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out the medical reasons for the examination.  According to s. 55(1)2 of the Schedule, the Applicant is barred from proceeding before the Tribunal with his/her claim(s) to benefits if they fail to comply with the insurer’s request to attend a section 44 insurer’s examination.

In this case, the Applicant requested for a reconsideration of the preliminary issue decision on the basis the Tribunal acted outside its jurisdiction, violated the rules of procedural fairness, and made errors of law and fact such that it would likely have come to a different conclusion had the errors not been made.  He claimed that by finding that the respondent met the requirement to provide “medical and any other reasons” for its Insurer’s Examination requests, the Tribunal incorrectly interpreted the Schedule and leading case law.

Notice of Examination Regarding Non-Earner Benefits Claim

In disputing the Tribunal’s conclusion on the sufficiency of the Notice of Examination in relation to his non-earner benefits claim, the applicant attempted to re-argue the position he advanced unsuccessfully, at the preliminary issue hearing. The applicant relied on the case he advanced at the hearing, 16-003316/AABS v. Peel Mutual Insurance Company [Peel Mutual], to argue that the Tribunal “grossly acted outside the scope of her jurisdiction” by concluding at para. 24 of the preliminary issue decision that:

The applicant’s own submissions on this issue, which refer to clinical notes and records referencing serious pre-existing chronic and degenerative conditions, highlight the need for clarity on the causation of the applicant’s impairments. The reasons for the request can hardly be described as incongruous or contrived. The reasons constitute a principled rationale based fairly on the applicant’s file.

Vice-Chair McGee found no error of fact or law in the Tribunal’s factual and legal findings on this point. The Tribunal’s finding at para. 24 of the preliminary issue decision that “reference to a specific diagnosis is not a strict requirement” is consistent with para 26, of M.B. v. Aviva Insurance Canada [M.B.] which was cited with approval at para. 19 of Peel Mutual, upon which the applicant relies. Such finding is that:

[…] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.

Vice-Chair McGee concluded that the Tribunal found at para. 24 of the preliminary issue decision that the latter requirement was met when the respondent required information about the causation and duration of the applicant’s impairments. Vice-Chair McGee further stated that nowhere in M.B. or Peel Mutual does the Tribunal strictly require reasons to refer to a specific medical diagnosis. Vice-Chair McGee also dismissed the applicant’s assertion that causation was not a reason provided by the respondent and stated that the reasons themselves include the word “cause”. Therefore, there was no excess jurisdiction in the Tribunal’s determination of the issues.

Notice of Examination regarding the $12,848.20 assistive devices claim

The applicant made similar submissions in relation to the Tribunal’s findings on the sufficiency of the Notice of Examination for his $12,848.20 assistive devices claim. He argued that the Tribunal inappropriately concluded that the claimed massage chair was due to his pre-existing kidney disease when he submitted that it was for back and shoulder pain. The applicant claimed that such conclusion was never stated by the insurer as a reason for requesting the Insurer’s Examination and it was improper for the Tribunal to insert it.

Vice-Chair McGee stated that the applicant was incorrect as para. 33 of the preliminary issue decision states the reasons for the respondent’s request specifically cites the applicant’s “concurrent medical conditions that might affect treatment and prognosis” and states that “the types of assistive devices claimed did not appear to be consistent with the applicant’s diagnosis.” Given the applicant’s own submissions that his daily dialysis treatment contributed to his need for a massage chair, the Tribunal’s observation that “the need would appear to arise from the applicant’s pre-existing kidney disease,” is reasonable. Vice-Chair McGee found no error in the Tribunal’s conclusion that the use of the phrase “unusual, novel, alternative, experimental or otherwise questionable treatment techniques” in the Notice of Examination demonstrated that the respondent required more information about the use of such devices.

Notice of Examination regarding the $2,628.35 claim for assistive devices and occupational therapy services

The applicant made similar submissions as to the Tribunal’s analysis of the reasons in the Notice of Examination in relation to his $2,628.35 claim for assistive devices and occupational therapy services. He argued that the Tribunal misapplied the case law which requires specifics about an insured’s injuries and medical documentation. Vice-Chair McGee points to her discussion about M.B. or Peel Mutual and states that the Tribunal’s conclusions are in line with the case law, supported by the record, and properly within the scope of the dispute.

Reference to supporting case law

The applicant argued that the Tribunal erroneously attributed reliance on Hedley v. Aviva Insurance Company of Canada [“Hedley”] when the case he relied on about boilerplate reasons was N.A. v. Aviva General Insurance [N.A.]. Vice-Chair McGee acknowledged that the applicant did not rely on Hedley but stated that Hedley was leading authority on the use of boilerplate statements in medical reasons in notices in the Schedule and that Hedley was binding on this Tribunal whereas N.A. is not. Nevertheless, the Tribunal would have arrived at the same conclusion had it cited N.A. Therefore, the Tribunal addressed the current state of the law on this point correctly.

Notice of Examination regarding the attendant care assessment claim

The applicant asserted that the Tribunal erred in fact and law in finding the Notice of Examination for his attendant care assessment sufficient. He referred to case law that was not relied upon at the preliminary hearing where medical reasons were found to be deficient namely Harvey v. TD Insurance Meloche Monnex [Harvey]. Vice-Chair McGee stated that a reconsideration is not an opportunity to buttress one’s case through new argument and additional authorities. Vice-Chair McGee then reiterated that the Tribunal’s analysis of the case law governing the sufficiency of medical reasons is accurately set out in both the preliminary issue decision and further articulated in these reasons.

Timeliness of the denial of the $1,293.80 claim for assistive devices

The applicant submitted that the Tribunal ignored the fact that the respondent’s June 12, 2018 Notice of Examination regarding his $1,293.80 claim for assistive devices was given more than 10 business days after receipt of the treatment plan on May 14, 2018. Vice-Chair McGee stated that the Schedule does not waive the procedural bar in s. 55(1)2 because of s. 38(8) non-compliance.

Conclusion / Takeaway

Vice-Chair McGee dismissed the applicant’s request for reconsideration because it did not comply with Rule 18 of the Common Rules.  In the alternative, his request was dismissed because he failed to establish grounds for reconsideration.

This reconsideration decision confirms that an insurer’s obligation to provide its “medical and any other reasons,” under s. 44(5)(a) is not so technical as to give rise to a basis to challenge the validity of the denial. Reasons to refer to a specific medical diagnosis is not strictly required. An insurer’s “medical and any other reasons” is sufficient if it either;

  1. includes specific details about the insured’s condition forming the basis for the insurer’s decision; or
  2. identifies information about the insured’s condition that the insurer does not have but requires.

Section 55 of the Schedule imposes a clear procedural bar on applicants who decline to participate in properly requested Insurer’s Examinations. In choosing not to participate in the requested Insurer’s Examinations, applicants impede their own ability to pursue some of their claims before the Tribunal.  Thus, the LAT has announced that those who counsel their clients to not attend at insurer examinations without providing cogent explanations for why at the outset, only to latch onto the amorphous ‘inadequacy of reasons’ for denial at a subsequent hearing, do so at considerable peril to their clients.  Implicit in this decision is the recognition that insurance adjusters may not have medical training to provide reasons that are so strictly scrutinized as to their sufficiency, such that a more relaxed standard of scrutiny as to the adequacy of the reasons is appropriate.

Yalda Aziz is a member of the LAT Practice Group and the author of this blog. If you have a question about this decision or a similar file, please contact Yalda at 416-777-5247.

 

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