TOP ACCIDENT BENEFIT CASES: THE INSURER PERSPECTIVE

Transcription

1 TOP ACCIDENT BENEFIT CASES: THE INSURER PERSPECTIVE The 30 th Annual Joint Insurance Seminar Presented by The Hamilton Law Association & The OIAA (Hamilton Chapter) April 19, 2016 Prepared by: Jeffrey E. Naganobu Agro Zaffiro LLP One James Street South, 4 th Floor Hamilton, ON L8P 4R5 naganobu@agrozaffiro.com

2 1. The Insured and Reasonable and Necessary CAT Examinations Cleary v. Wawanesa Mutual Insurance Co., [2016] O.F.S.C.D. No. 1 The Applicant was involved in a motor vehicle accident on October 27, 2009 and sought a catastrophic determination. An OCF-19 was completed on August 30, 2011 by the Applicant s Physiatrist who found that both Criterion 6 and 7 applied. Catastrophic IEs were then completed under various modalities including: a) Kinesiologist; b) Neurologist; c) Psychiatrist; d) Occupational Therapy; and, e) Orthopaedic Surgeon. The conclusion was the Applicant was not catastrophically impaired. Thereafter a second OCF-19 was sent on June 11, 2013 amending the Catastrophic Application to include Criterion 8 (Marked Impairment). The Applicant completed her own Catastrophic Rebuttal Examinations and included a Neuropsychologist and Psychiatrist. These reports were provided to the Insurer on January 29, Based on these reports the Insurer sought to conduct additional Catastrophic IEs including a Neuropsychological Examination and a new Psychiatric Examination. The Applicant attended the Neuropsychological Examination. The physician concluded that the Applicant was not catastrophically impaired but the conclusion would not be considered final until such time as there was an Executive Summary which would consider all aspects of the Applicant s physical and non-physical condition. The issue was whether the Insured should be examined by a new psychiatrist. The Insurer thought that it was reasonably necessary to revisit this issue of catastrophic impairment especially given the new reports filed and the fact that Criterion 8 was now identified as being in issue. In addition, years had passed since the original CAT IEs and with changes in the Applicant s condition it was appropriate for the Insurer to conduct new examinations. The Insurer believed there is no requirement that any subsequent examination utilize the same professional that conducted the initial CAT IE.

3 In response the Applicant stated that there is no authority to seek re-examination for determination of catastrophic impairment. The previous IEs did address the psychiatric condition even though Criterion 8 was not specifically listed and as such there was no need for an additional Psychiatric Examination. The Applicant was prepared to attend to update the previous Psychiatric Examination but would not allow a new assessor to conduct an examination as it would be an unwarranted intrusion. It fell on the Arbiter to determine whether it was reasonably necessary that the Applicant attend an IE with a second psychiatrist. The Arbiter noted that a Psychiatric Examination is intrusive but not invasive. It involves interviewing and testing but there is no need to disrobe or have medical imaging conducted. When you consider the reasonableness of an IE the Arbiter pointed to the following factors: (i) (ii) (iii) (iv) Timing of request: The Insurer s request was made soon after it received the 2013 OCF-19 and the Applicant s own assessments. The timing of the request was consistent with a need on the part of the Insurer to seek to adjust the claim based on a new OCF-19 and the corresponding need to obtain an updated examination to do so. Possible prejudice to both sides: The CAT Rebuttal noted that the original assessor was missing information, especially on the issue of the Applicant being in danger in the kitchen. This could be prejudicial to the Insurer if it is not permitted to address the information gap with a new examination. Number and nature of exams: In this case, the Applicant has been through many examinations. The proposed examination was physically non-invasive. Although it would be tedious and invasive of the Applicant s time and energy, the additional psychological examination proposed would not tip the balance to what should be considered unacceptable. This was not a repeat of the entire battery of examinations. The Insurer s request was for two new examinations, one of which the Applicant had allowed. Nature of examination: The proposed psychological examination, although inherently invasive was at a minimum level of invasiveness. Using the original assessor might be less invasive, but it was difficult for the arbiter to make that determination. There was no evidence provided in support of that assertion. The arbiter referred to section 44 of the Schedule which states: the examination is by persons chosen by the insurer

4 (v) New issues raised by the Applicant: The 2013 OCF-19 raised Criterion 8 which suggests a need for new assessments. Although the previous assessments had also touched on this criterion, the Applicant s psychiatrist and counsel had considered the issue sufficiently important to file a further OCF-19. Because the Applicant put this criterion into question, it is reasonable that the Insurer would want that criterion reviewed. (vi) Nexus between assessment proposed and injuries: There was no question that the proposed psychiatric assessment is connected with the Applicant s claim for a determination of catastrophic impairment on Criterion 8. (vii) Inherent intrusiveness: Again an assessment by the original assessor might make the intrusiveness less, but the arbiter thought the difference was minimal and there was no evidence submitted to suggest otherwise. (viii) Callous disregard for Applicant: It was found that the first set of CAT IE s were missing information. It was reasonable to have the Insurer consider such new information through its appropriate health professionals. In addition there was no evidence that the Applicant s health would be adversely affected by the additional proposed examination. Overall it was thought that the Insured Psychiatric Examination was reasonable. Reports can be subject to change as new evidence comes forth or the Applicant s injuries mature. In this situation subsequent Applicant reports pointed to changes and it was appropriate for the Insurer to conduct a Psychiatric Assessment to explore that issue. While there is no authority for an Arbiter to order an Applicant to attend an IE in order to ensure a fair hearing the Arbiter stayed the Application until such time as the Insured would attend and complete the examination. Therefore it is incumbent on an Insurer to consider as part of the ongoing adjustment of the claim whether additional assessments are required even if it means that a different assessor is utilized.

5 2. Relying on the Denial Bonaccorso v. Optimum Insurance, [2016] ONCA 34 This involved a motor vehicle accident on February 4, The Applicant initially received IRBs to June 28, 2009 when she returned to work. She received the following letters: (a) (b) June 22, 2009 the Insurer sent a letter reading that no further benefits would be payable once she began her full-time work. February 8, 2010 the Insurer sent a letter with an Explanation for Benefits saying that IRBs were being discontinued effective June 28, The Applicant continued to work until February 15, 2011 and at that time she left her employment advising that it was due to her accident-related injuries. She requested reinstatement of her IRBs on July 13 th, The request was denied based on the limitation period and the denials found in the earlier letters. The matter was mediated, failed and a Statement of Claim was issued. A summary judgment motion was brought and the action was dismissed on the limitation period finding that the claim was statute barred. The Court of Appeal upheld the decision. Justice Arrell hearing the motion had correctly applied the governing principles for an AB refusal. The Insurer had clearly discontinued the Applicant s IRB and explained the process to dispute the stoppage and set out the two year time limit in which the Applicant could contest the decision. The claim had been made and benefits were received and despite the return to work there is only a single claim that arises from the accident. There had been a valid stoppage of benefits and the two year limitation period began to run on February 8, The Applicant also argued that the claim for IRB only crystalized when she stopped working in February of The Court of Appeal disagreed and relied on earlier decisions which found: the limitation period runs from an Insurer s refusal to pay benefits, notwithstanding that the Insured had suffered no actual loss in the interim period. In addition, the Insured s argument based on a return to work would extend a claimant s entitlement to benefits for an indeterminate amount of time which would be inconsistent with the AB needs for finality, certainty and the principal of diligence underlying limitation periods.

6 3. Causation Blake v. Dominion of Canada General Insurance Co., [2015] O.J. No While the Court of Appeal dealt with many issues in this motor vehicle accident, for today s purposes we will focus on causation. One issue at the appeal was whether the Trial Judge erred in the choice of causation test. The Insured submitted that the Trial Judge failed to apply the material contribution test to the issue of the causation of the Insured s post-accident symptoms. The Court of Appeal did not accept that submission. Historically counsel have referred to the case of Monks v. ING Insurance Company of Canada, [2008] O.J. No (C.A.) as standing for the use of material contribution on causation in Accident Benefit cases. The Court of Appeal commented on the Monks case by saying that: This Court held that having advocated at trial for the adoption of the material contribution test in a Statutory Accident Benefit case, the insurer could not fault the Trial Judge for applying the test. In Blake, the Court of Appeal specifically found that the Trial Judge was not asked to depart from the general but for test of causation as described by the Supreme Court of Canada. Under those circumstances there was no error in the Trial Judge applying the but for causation test to the facts of this case. This is an important distinction which could have long term effects across every type of AB case. To date FSCO has reviewed it in two situations. In Agyapong v. Jevco Insurance Company, [2016] O.F.S.C. D. No. 12 Arbiter Wilson commented on the causation test. It was noted that in Clements v. Clements the Supreme Court of Canada said that the usual test would be but for. With respect to material contribution generally it must be impossible for the Plaintiff to prove that the Defendant s negligence caused the Plaintiff s injury using the but for test.

7 Arbiter Wilson noted that the Court of Appeal in Blake v. Dominion of Canada General Insurance Co implied: That without a specific request and justification, the but for test remains the default in accident benefit matters as well. While I accept that the days of the ritual application of the material contribution test in Accident Benefits are numbered at best, I do not believe that Mr. Agyapong has met either test in this matter. More recently there is the decision of Vandergaag v. Aviva Canada Inc., [2016] O.F.S.C.D. No. 52. Arbiter Sherman reviewed the history of the material contribution test beginning in Monks v. ING Insurance Company of Canada and how it had been adopted in various arbitration cases. In this situation the Insurer submitted that the material contribution test was never stated to be the determinative evaluation and urged Arbiter Sherman to follow the more recent decision of Blake v. Dominion of Canada General Insurance Co. and apply the but for test. Arbiter Sherman noted that the Clements v. Clements case from the Supreme Court of Canada applied to negligence cases while the Statutory Accident Benefit case is one of contract law. He reviewed a decision of Arbiter Smith who believed that determining legal causation for SABS purposes can be quite different than legal causation for torts purposes. Arbiter Sherman s interpretation of the Monks v. ING Insurance Company of Canada was the Court of Appeal held that in the circumstances the Trial Judge did not err on applying the material contribution test rather than the more onerous but for test. As discussed, the circumstances were the material contribution test had been proposed by the Insurer. He did not mention Arbiter Wilson s decision of Agyapong v. Jevco Insurance Company. Overall he found that the purpose of Accident Benefits legislation is to provide people who have sustained an injury with accident benefits on a no-fault basis and that the material contribution test best complies with that purpose. It is not clear how it best complies or is more applicable than the but for test. Therefore since the decision of Blake v. Dominion of Canada General Insurance Co. there have been two arbitration decisions which have gone in opposite ways in its interpretation of the applicable causation test. Entering the world of the LAT means that neither decision is binding but at best persuasive. Counsel will be able to reinitiate the causation test with fresh eyes before the new system and an interpretation of the cases of Monks v. ING Insurance Company of Canada and Blake v. Dominion of Canada General Insurance Co. will be decided which will provide guidance going forward.