Volume. 5 Issue. 38- August 25, 2021
In this edition, we report on two non-compliance s.44 cases and a case where costs were granted.
In the first case, the Tribunal found no formal s.44 request made in one instance, required for the Respondent to be able to invoke and rely upon the s.55 procedural bar.
In the second, despite the Applicant’s failure to attend three IEs with respect to his claim for IRB, he was nevertheless allowed to proceed with his claim as the IEs were requested “more often than was reasonably necessary.”
Lastly, the insurer’s behaviour was found to be “shocking” such that a cost award was warranted.
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In Trending
Pre-Emptive Non-Compliance Not Penalized & 3 IEs Too Many
No Penalty For “Pre-Emptive Noncompliance” – In Aeri v Aviva (19-013288), Aeri had failed to attend any of the eight IE’s scheduled. The Tribunal found that as the requests were all made in accordance with s.44 of the Schedule, Aeri was therefore barred from proceeding with claims for NEB, ACB assessment, three OCF18’s for assistive devices and one for OT services. Aeri had argued that the requests for all were “improper”, with reasons that were “incongruous and contrived” and contained “boilerplate” language.
With respect to the latter suggestion, the Tribunal noted, “To the extent that boilerplate language can effectively communicate the basis of the insurer’s decision, that language may be sufficient to meet the requirements”, as long as there is a “principled basis for an insured person to challenge the denial of a benefit or decide whether to attend an insurer’s examination”.
However, given Aeri’s well established pattern of non-compliance, the Respondent ultimately opted not to arrange an IE for the claimed ACBs. In response to a Form 1, the Respondent advised Aeri that they would agree to pay the benefits with proof of “incurred”, and that they would be sending a NOE with respect to a proposed IE regarding same. That same day Aeri’s counsel advised that his client refused to attend any of the respondent’s intended insurer’s examinations. The Respondent contended that since Aeri refused to attend the requested examination before a formal Notice of Examination had been issued, it did not send the notice or provide reasons for the request.
The Tribunal was “prepared to accept that the applicant’s refusal to attend may have rendered a formal Notice of Examination practically unnecessary (however) there is nothing in the Schedule that relieves an insurer of its obligation to provide reasons for a request under s. 44 simply because an insured person has pre-emptively communicated their unwillingness to comply with the request.” As a result, “absent a Notice of Examination, there is no ‘request’ upon which the respondent can invoke the s. 55 procedural bar. The applicant may therefore proceed with his attendant care benefit claim.”
Duplicative, Redundant, Unnecessary and Unreasonable – In Acamovic v Cayuga Mutual Insurance (20-005445), the Applicant, having failed to attend three IEs with respect to his claim for IRB, was nevertheless allowed to proceed with his claim regarding same. The Tribunal found that the three IEs were not requested in accordance with s.44 of the Schedule. This was as result of a finding that the IEs were requested “more often than was reasonably necessary.” Acamovic had attended three IEs in February and March 2018. The proposed new IEs were scheduled for May 25 and May 31, as well as June 1, with the same assessors. The Respondent contended same to be required given that they had received word April 16, 2018 that Acamovic had returned to work.
The Tribunal however found that while this change in circumstances “might reasonably have prompted the respondent to request more information from the applicant” which they did by requesting an OCF-13 (Declaration of Post-Accident Income and Benefits), an IE was not warranted. There was “no rational connection between a suspected change in employment status and an entirely new round of physical examinations”. The proposed IEs were therefore confirmed as “duplicative, redundant, unnecessary and unreasonable.”
Of note: a request for reconsideration is being actively considered.
“Shocking” Behaviour Warrants Costs
“Shocking” Behaviour Costly for Insurer – In Ahmed v Aviva (19-009565), the Tribunal’s ruling on a Motion to Dismiss on the part of the Respondent went one step further. In dismissing the motion to dismiss, the Tribunal found for a fact that there was throughout “a clear, demonstrated intention to proceed with [Ahmed’s] application (as well as the known difficulties arising from his former counsel’s passing) …”. To that end, the Tribunal ruled that “Instead of fulfilling its duty of good faith toward the applicant the respondent pursued a dismissal of this matter when it must have reasonably known the applicant had not abandoned the matter.”
The Tribunal was “shocked the respondent continued to proceed with this motion to dismiss the application as abandoned in the circumstances (especially considering previous counsel’s death and applicant’s personal barriers).” So much so, that the Respondent was found to have “contravened its duty of good faith owed to the applicant”, thereby warranting a costs award to Ahmed. Further, pressing on with this motion, “when it was obvious it lacked any merit”, obliged the parties to deal with this motion, interfering with the efficient, effective hearing process pursuant to Rule 19.5. To “reflect the prejudice wrought to the parties, the deleterious effect on the efficiency of the hearing process and serve to denunciate the bad-faith conduct”, costs were awarded in the sum of $250.
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