A recent decision by the Licence Appeal Tribunal confirms that "boilerplate" reasons for an insurer's examination are not sufficient notice of an examination under the Statutory Accident Benefits Schedule.
Our client had applied for catastrophic impairment determination, which was denied by Aviva Insurance. Aviva scheduled insurer's examinations, one of which was an otolaryngologist (Ear, Nose and Throat Specialist) assessment. This assessment report was received by the insurer on December 22, 2016. The day prior to that, a new Assessment of Attendant Care Needs (Form 1) was completed on the client's behalf. Aviva denied the amount of attendant care and scheduled insurer's examinations to determine the attendant care amount with an occupational therapist and the same otolaryngologist that the insurer had retained to complete the catastrophic assessment.
Chris Jackson, Accident Benefits Manager at Smitiuch Injury Law, questioned Aviva's reasoning for another otolaryngologist assessment, as the insurer is required to do under the legislation. When a sufficient reason was not provided, the client refused to attend that particular assessment, but agreed to attend the occupational therapy assessment.
Aviva then tried to argue that the client was barred from disputing the insurer's denial of attendant care benefits because he did not attend the insurer's examination.
Luke Hamer, Associate Lawyer at Smitiuch Injury Law, assisted by Chris Jackson and Frank Piazza, articling student, argued that Aviva had not provided sufficient notice of an insurer's examination because no medical reason was provided for the otolaryngologist assessment.
In her decision, Applicant and Aviva General Insurance (19-002413/AABS), Adjudicator Monica Chakravarti stated the following:
The applicant submits and I agree that the above "reasons" provided for the Otolaryngologist IE are boilerplate reasons.
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The first reason given by the respondent in the March 31, 2017 letter is that the monetary amount of the ACB [attendant care benefits] claimed by the applicant is in excess of the monetary limits available to the applicant. I find that this is not a medical reason nor a reason that is meaningful. There is no nexus conveyed to the applicant between the monetary amounts of the ACB and an Otolaryngologist IE and how or why the monetary amounts of the ACB are linked to an Otolaryngologist IE.
The second reason conveyed to the applicant - the requirement for the impairment(s) to be addressed and diagnosed - as well falls short of being meaningful to the applicant in that it fails to tell the applicant what is needed from the Otolaryngologist IE that has not already been obtained. The lack of detail makes this rationale a boilerplate reason for an assessment and therefore constitutes no reason at all.
The third reason provided by the respondent - Since an occupational therapist is unable to diagnose impairment it is reasonable and necessary...to attend the scheduled assessments - simply completes a full circle in that it again provides nothing meaningful by way a rationale for the Otolaryngologist IE and is in my view a restatement of the second reason provided.
I am also not persuaded by the evidence of the adjuster. When looking at the cross-examination of the adjuster as a whole it is evident that the adjuster could not provide a clear rationale for the Otolaryngologist IE and simply relied on the letters provided to the applicant without expanding further. Secondly, the adjuster could not confirm in a clear manner what the medical reason was that was conveyed to the applicant and simply used phrases that some of the reasons provided in the letters listed above "could be" a medical reason or, in the case of the March 31st, 2017 correspondence, that there is "one and possibly could be conceived as two medical reasons" for the Otolaryngologist IE.
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I find based on the evidence that Aviva failed to provide the medical and any other reason for the Otolaryngologist IE in a way that was meaningful, clear and directed to an unsophisticated applicant. Therefore, Aviva did not provide notice in accordance with section 44(5)(a) of the Schedule and the respondent cannot rely on section 55(1) 2 to bar the applicant's application.
This case demonstrates the effectiveness of having legal counsel who are well-versed in accident benefits legislation in order to challenge the insurer, when necessary.
The full decision can be found by clicking here.
