Date: September 13, 2016

Tribunal File Number: 16-000213/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between: S. L.

and

Certas Home and Auto Insurance Company

Insurance Company

Adjudicator: D. Gregory Flude HEARD: In Writing August 11, 2016

1This is a motion brought by the Insurance Company to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to prohibit the Applicant from bringing an application for statutory accident benefits because she failed to attend an Insurer’s Examination (IE) under s. 44 of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).

2Having considered the evidence and the submissions of the parties, I find that Applicant is not prohibited from proceeding with the application.

FACTS:

3The underlying facts are not in dispute and are set out in the affidavit of Christina Vittorio, a claims advisor with the Insurance Company.

The Applicant was in an accident on July 17, 2011
She submitted 3 treatment plans dated August 30, September 6 and September 13, 2011and an application for Accident Benefits on September 20, 2011
On September 29, 2011 the Insurance Company sent a notice of an IE to the Applicant giving, as a medical reason: “The purpose of this examination is to determine if injuries fall within the minor injury guidelines.”
The appointment referred to in the September 29 letter was rescheduled by letter dated October 12, 2011. The October 12 letter states the medical reason is: “The purpose of this examination is to determine if treatment plan is reasonable and necessary.”
A November 18, 2011 letter rescheduling the medical appointment for December 1, 2011 uses the same wording as the September 29 letter.
A November 29, 2011 letter setting up an appointment for a psychiatric assessment combines the wording and states: “The purpose of this examination is to determine if injuries fall within the minor injury guuideline [sic] and to confirm if treatment plan is reasonable and necessary.
The Applicant did not attend any of the scheduled IEs.
As a result of her failed attendance the Insurance Company did not pay the claim for benefits.
The Insurance Company provided a Cantonese interpreter for each of the scheduled IEs however; the Applicant did not attend the scheduled IEs because she indicated that she required a Cantonese interpreter accredited by the Ministry of the Attorney General (MAG). The Insurance Company took the position that there is no requirement in the Schedule for a MAG accredited interpreter.
On June 20, 2012 the Applicant applied to the Financial Services Commission of Ontario (FSCO) for mediation of the Insurance Company’s denial of payment of the three treatment plans. The Applicant subsequently filed for arbitration at FSCO on November 20, 2013.
The arbitration was resolved by order of FSCO dated November 19, 2015. The order states that the Applicant was permitted to withdraw her application with costs, which is contrary to the assertion of Ms. Vittorio who states that the proceeding was dismissed.¹
On November 21, 2012 the Applicant submitted a different type of treatment form to the Insurance Company. This form, a treatment confirmation form, is used when it appears that an injured person has suffered predominately soft tissue injuries and permits the insured person to access immediate treatment without the need for approval by the insurance company. Treatment pursuant to a treatment confirmation form is governed by the Minor Injury Guideline (MIG) and patients utilizing this form are often referred to as “being in the MIG.” The maximum payment for medical and rehabilitation benefits under the MIG is $3,500.00. The treatment confirmation form claimed treatment in the amount of $2,015.00, which the Insurance Company confirmed it would pay on December 3, 2012.
In December 2015, over three years after submitting a treatment confirmation form for treatment within the MIG, the Applicant submitted a new treatment plan to the Insurance Company dated December 14, 2015 for treatment in excess of the MIG limits. She seeks $9,236.48 for various treatments and assessments, including two initial assessments, chiropractic services, acupuncture, manual muscle therapy and an exercise program.
The Insurance Company denied this treatment plan on January 16, 2016. It cited the complete lack of medical documentation received from the Applicant since she initiated her claim in 2011 supporting the contention that the Applicant’s injuries fall outside of the MIG or that she had a pre-existing condition that would require treatment beyond the MIG limits to ensure full recovery. The only documentation received by the Insurance Company on the Applicant’s claim was her family doctor’s clinical notes and records, received in 2013, which indicate that she did not report the accident to him.
The Insurance Company did not require the Applicant to attend an IE with respect to this treatment plan.
The Insurance Company denied the treatment plan on Jan 16, 2016 citing a complete lack of medical documentation received from the Applicant since she initiated her claim in 2011 supporting the contention that the Applicant’s injuries fall outside of the MIG or that she had a pre-existing condition that would require treatment beyond the MIG limits to ensure full recovery.
The Insurance Company did not request the applicant attend an IE in respect of this December 14, 2015 treatment plan.

THE ISSUE BEFORE THE TRIBUNAL

Is the Applicant precluded from commencing an application regarding the Insurance Company’s refusal to pay of the December 14, 2015 Treatment Plan on the basis that she did not attend any of the IEs scheduled in 2011?

ANALYSIS

4The Insurance Company submits that the current proceeding duplicates the Applicant’s 2011 application for benefits. It submits that, as a matter of policy, I should not permit an Applicant, who has been medically quiescent for four years, to revitalize her claim by simply submitting a new treatment plan. The difficulty with this submission is that it requires me to make a determination on the merits. I must determine if the current claim is a restatement of the earlier claims. That determination would require me to consider evidence about the nature and scope of the earlier claim and the nature and scope of the current claim. On a motion of this nature, I am not in a position to make findings on the merits. I do not have the evidence, nor have the parties made the appropriate submissions. I decline to make this finding. It is reserved to the adjudicator who will conduct the hearing.

5The Insurance Company seeks to invoke the exclusionary provisions of s. 55 (1) of the Schedule to exclude the Applicant’s application to this Tribunal. It takes the position that s. 280(2) of the Insurance Act, RSO 1990, c I.8 and s. 55 of the Schedule act as complete prohibitions to the Applicant applying to the Tribunal for the resolution of a dispute in respect of the Applicant’s entitlement to statutory accident benefits. In particular, s. 55 (1) of the Schedule states:

(1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:
The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.

6The Insurance Company submits that s. 280(2) of the Insurance Act addresses “entitlement to statutory accident benefits,” not to a specific benefit as set out in a claim form. It addresses benefits at large. When read in conjunction with s. 55 (1) 2 of the Schedule, the Applicant’s failure to attend an IE prohibits her from applying to the Tribunal for any benefit, whether that benefit is related to the condition being assessed at the IE or not.

7The Applicant submits that the December 14, 2015 Treatment Form creates a new and independent obligation on the Insurance Company to adjust the Applicant’s claim untainted by the issues in the earlier proceeding. In the Applicant’s submission, the only ground upon which the Applicant could be denied a hearing before the Tribunal with respect to the December 14, 2015 treatment plan would be if she failed to attend an IE arranged by the Insurance Company to address the issues raised in that plan. Since the Insurance Company has not requested that she attend such an IE, she is entitled to have her dispute heard.

8In the alternative, the Applicant submits that, if an earlier failure to attend an IE precludes an insured person from applying to the Tribunal for the resolution of a dispute in respect of any statutory accident benefits, the onus is on the Insurance Company to prove that it served the Applicant with notice in accordance with the Schedule. According to the Applicant the notices are defective.

9The Insurance Company submits that the Applicant failed to raise the adequacy of the notice in the earlier proceeding. It takes the position that I should not consider the sufficiency of its because by failing to raise the question of the sufficiency of the notices in the earlier proceeding, the Applicant has prejudiced the Insurance Company by foreclosing its right to correct the defective notices. I am not persuaded by this submission.

10The onus of satisfying me that the exclusion applies rests with the Insurance Company. The wording of s. 55(1) 2 is unambiguous. It has two elements. The first element is that the Insurance Company must prove that it provided the Applicant with notice of an examination in accordance with the Schedule. The second element is that the Applicant failed to attend. It is clear that the Applicant did not attend the scheduled examinations. The dispute at the time was focused on the qualifications of the interpreter retained by the Insurance Company to assist at the examinations. The dispute was resolved when the Appellant withdrew her arbitration application to FSCO. Contrary to the assertion of the Insurance Company that the application was dismissed, it was not. No determination was made on the merits of the application. I can see nothing arising out of that action that relieves the Insurance Company of its regulatory obligation to provide proper notice.

Sufficiency of Notice

11The current version of the Schedule came into effect in September, 2010. Among the amendments contained in this version was a change to the regulation concerning the notice that was to be given to an insured person when the insurer required an IE. Prior to September 2010, an insurer was required to provide the “reasons for the examination.”² The September 2010 amendment required the insurer to give a notice setting out “the medical and any other reasons for the examination.” Subsequent to the changes, several cases addressing this issue were litigated at FSCO.

12The question of what wording might satisfy the requirement to give “medical and other reasons” was considered in the FSCO Appeal decision of Kadian Augustin v Unifund Insurance Company, FSCO A12-000452 (“Augustin”), released on November 13, 2013. The wording in Unifund’s notice in Augustin, is not dissimilar to, but more extensive than, the wording in the current matter.

13In a thorough analysis of the regulatory scheme, Arbitrator Sapin concluded that Unifund’s notice fell short of the legislative requirements. At page 12 of the decision she states the minimum requirements to satisfy the obligation to provide medical and other reasons for the IE. Where there is a dispute whether the MIG applies, as in the current matter, the Insurance Company must state that it has reviewed the MIG and the treating health practitioner’s opinion and concluded that, in the view of the Insurance Company, they do not provide compelling evidence that the injuries fall outside the MIG or that the treatment is reasonable or necessary. While I am not bound by decisions of FSCO, I find Arbitrator Sapin’s reasons in Augustin persuasive.

14Applying the reasoning in Augustin to the current facts, the Tribunal finds that the 2011 notices failed to set out adequate medical and other reasons for the IEs. While each letter identifies the purpose of the IE, none of them details the reasoning behind the requirement for the IEs. There is no review of the medical grounds asserted in the Treatment Plans or a statement of a belief by the Insurance Company that medical grounds do not establish a case that the injuries fall outside the MIG.

Estoppel

15The Insurance Company submits that the failure of the Applicant to raise the issue of defective notice in the earlier proceeding has prejudiced it. In its submission, it states that had it been aware of the Applicant’s position, it could have sent out amended notices. I find that the insurance Company has not established detrimental reliance based on the facts before me.

16In its factum, the Insurance Company submits that the Applicant is estopped from relying on deficiencies in the 2011 notices. The Insurance Company submitted that the essential elements of the doctrine of estoppel are:

i. a representation was made by the Applicant; and the Insurance Company relied on the representation to its detriment;

ii. the representation may be by action or inaction; and

iii. it is the Applicant’s failure to raise the sufficiency of the notices that is relied upon by the Insurance Company

17The Insurance Company asserts that had the sufficiency issue been raised in the earlier proceeding, it could have served amended compliant notices. Given the stance taken by the Applicant in the earlier proceeding, that she refused to attend because the interpreter was not MAG certified, the effect of any final determination by FSCO would have been to foreclose any defence by the Applicant to the Insurance Company’s current motion.

18At issue in the earlier proceeding was the Applicant’s non-attendance at IEs arranged by the Insurance Company following receipt of three Treatment Plans in 2011. The Applicant subsequently submitted a Treatment Confirmation Form in 2012 and since that time her claim has been adjusted under the MIG.

19The Augustin decision, calling into question the adequacy of the type of wording used by the Insurance Company in 2011, was released in November 2013. It was open to the Insurance Company, at that time, to revisit its notices and correct the defect. No action by the Applicant prevented it from doing so. What, in fact, occurred was that the Applicant abandoned its 2011 claim. The denial of those claims having occurred in 2011, it is long past the limitation period for any further appeal on the denial. The Insurance Company ultimately benefitted from the Applicant’s failure to assert the sufficiency of the 2011 notices.

20Overall, the Insurance Company’s position with respect to the Applicant has not been changed or compromised in any way. Its position has always been that the Applicant falls within the MIG. In 2011 it sought to have the Applicant attend at IEs to confirm or contradict that position. In 2016, the Applicant filed another treatment plan suggesting she does not fall within the MIG. Since receiving the December 14, 2015 treatment plan, it remains open to the Insurance Company to serve the appropriate notice for her to attend one or more IEs. The Insurance Company is in exactly the same position with respect to this treatment plan as it was in 2011 in respect of the three earlier treatment plans.

ORDER

21The motion is dismissed. The matter will proceed to hearing as set out in the order of Adjudicator Lester dated July 6, 2016.

Released: September 13, 2016

D. Gregory Flude,

Vice-Chair

Footnotes

The documentation attached to Ms. Vittorio’s affidavit is cut off at the point where the issues in dispute are delineated so I am unaware of the full scope of the issues in the previous FSCO proceeding.
S. 42 (4) of O/Reg 403/96

S. L. v. Certas Home and Auto Insurance Company, 2016 CanLII 60726

Case Summary