Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
File: 16-001652/AABS
Case Name: I.K. v. Primmum Insurance Company
Written Submissions By:
For the Applicant: Gula Essipov
For the Respondent: Jennifer Sweitzer
Overview
1Under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"), insurers have a number of tools at their disposal to adjust files. One of those is the ability to request an insurer's examination or "IE" under s. 44, in essence a medical assessment of an insured person's condition. Using an IE, an insurer can more accurately assess whether an insured is eligible to receive the benefits for which he or she applies. Put simply, IEs help insurers make the decisions they need to make.
2IEs are such an important tool, in fact, that the Schedule includes several consequences for an insured person's failure to attend one. This request for reconsideration concerns one of those consequences: s. 55(1)2. In essence, that section precludes an insured person from applying to the Licence Appeal Tribunal (the "Tribunal") after failing to attend an IE for which he or she has been given proper notice. As the applicant, I.K., frames it, the issue before me is the scope of that bar: does it prohibit all applications disputing entitlement to any benefit or, instead, only those applications disputing the same benefits for which the insurer requested the IE?
3In this case, I.K. failed to attend multiple IEs. As a result, his insurer, Primmum Insurance Company ("Primmum"), denied him several benefits. I.K. then applied to the Tribunal, claiming entitlement to not only those denied benefits but also attendant care benefits ("ACBs"), something for which Primmum has never requested an IE in order to determine his entitlement. As part of its response, Primmum made a preliminary motion, arguing that I.K.'s application was barred given his non-attendance at the IEs. I.K. resisted the motion by arguing that Primmum failed to provide him with adequate notice of the IEs. The Tribunal granted Primmum's motion and applied the bar in s. 55(1)2 to I.K.'s application as a whole. I.K. now asks me to reconsider that decision, arguing that the Tribunal should not have applied the bar to his entire application but, instead, should have let his claim to ACBs continue.
4I.K.'s submission is new and was raised for the first time in this request for reconsideration. He never made the argument before the Tribunal. For that reason, along with others detailed below, I deny this request.
The Facts
The accident
5I.K. was injured in a motor vehicle accident on October 1, 2014. Shortly after, he submitted an Application for Accident Benefits (OCF-1) to Primmum. Based on the details included in the Application, Primmum took the position that I.K. was subject to the Minor Injury Guideline ("MIG") and its $3,500 monetary limit for medical and rehabilitation benefits.
Primmum's first request for IEs
6That same month, I.K. submitted two Treatment and Assessment Plans (OCF-18):
- The first, dated October 6 and completed by Dr. Chad Hefford (Chiropractor), recommended that I.K. receive physiotherapy services totalling $3,371.21. By letter dated October 24, Primmum denied the benefit – although later partially approved it up to $2,200 – and requested that I.K. attend two IEs, one with a psychologist, the other with a physiatrist. Primmum's notice of examination explained the purpose of both IEs as "Medical & Rehabilitation Benefits" and "MIG applicability," and made specific reference to this OCF-18.
- The second OCF-18, dated October 8 and completed by Pravin Kedar (Occupational Therapist), recommended that I.K. receive an attendant care assessment at a cost of $1,230.92. By separate letter dated October 24, Primmum also denied the benefit, explaining that it was treating I.K. within the MIG and, thus, he was not entitled to ACBs.
7During the next two months, I.K. failed to attend both IEs. Primmum informed I.K. that it would determine his entitlement to benefits once he attended the assessments. Primmum also demanded repayment of the costs it incurred as a result of I.K.'s non-attendance.
8During this same period, and after receiving a Disability Certificate (OCF-3) and Election of Income Replacement, Non-Earner and Caregiver Benefit (OCF-10), Primmum confirmed that I.K. was eligible to receive non-earner benefits ("NEBs"). It informed him, however, that NEBs were not payable for the first 26 weeks of eligibility and that, in the future, it may require an updated OCF-3 or IE to assess his entitlement to that benefit.
Primmum partially approves a psychological assessment
9In February and March 2015, I.K. submitted two further OCF-18s. The first, dated February 5 and completed by Dr. Vivyan Le (Chiropractor), recommended that I.K. receive physiotherapy services totalling $2,208.50. Primmum denied the benefit. The second, which the parties describe as having been completed on March 9 by Dr. Hefford, recommended that I.K. receive a psychological assessment at a cost of $1,855.39. Primmum partially approved the plan up to $1,300. This assessment would become important.
Primmum's second request for IEs
10On both May 6 and 13, 2015, Primmum notified I.K. that it required him to attend IEs in order to "determine [his] entitlement to [NEBs]." As it had done before, it scheduled two assessments, one with a psychologist, and the other with a physiatrist.
11Again, neither happened. By letter dated May 28, I.K.'s representative demanded that Primmum "properly confirm" I.K.'s entitlement to NEBs, and forward a list of all payments of the benefit paid to date. Only then, the letter suggested, would I.K. attend the IEs. The following day, Primmum confirmed that it cancelled the IEs in order to "determine [I.K.'s] initial entitlement to NEBs." Primmum also reiterated that, in order to render that determination, it required IEs. To that end, Primmum invited I.K.'s counsel to discuss mutually convenient dates for I.K.
12The following week, I.K. submitted a further OCF-18. That plan, dated June 3, and completed by Dr. Hefford, recommended that I.K. receive physiotherapy services totalling $2,208.50. Primmum denied the plan on the basis that I.K. had already exhausted the MIG's monetary limit.
Primmum takes I.K. out of the MIG
13I.K. had the psychological assessment that Primmum agreed to partially fund. The results of that assessment were detailed in a psychological report dated June 19, 2015. In short, the report recommended I.K.'s removal from the MIG so that he could receive counselling. Primmum agreed. Thus, by letter dated September 4, 2016, it explained to I.K., among other things, the following:
- as a result of his psychological symptoms, he would no longer be treated within the MIG and, therefore, was entitled to medical and rehabilitation benefits of up to $50,000;
- he may be entitled to ACBs. For that reason, it approved the OCF-18 that Pravin Kedar completed on October 23, 2014 in order to allow I.K. to "obtain an assessment of [his] attendance care needs, including a Form-1 completion. Following this determination, I.K. submitted an Attendant Care Needs Assessment Report prepared by Kedar. The parties have also confirmed that I.K. has since submitted an Assessment of Attendant Care Needs (Form 1); and
- he was also entitled to NEBs as of April 1, 2015. However, given his failure to attend the IEs that Primmum requested in May 2015, this benefit was terminated as of June 3, 3015, the date of the first of the two assessments. Primmum advised him that it may change its determination if he decides to attend IEs, and that it would send a further notice of examination.
14By separate letter dated September 4, 2015, Primmum wrote to I.K. to discuss certain OCF-18s he had submitted to date. It also reiterated its need for an IE, explaining that it required "an independent opinion in order to make a determination regarding [his] past physical rehabilitation as well as the further facility-based physical rehabilitation."
Primmum's third request for IEs
15Shortly after, by letter dated September 11, 2015, Primmum sent I.K. a notice requesting three IEs: an in-home assessment by an occupational therapist, along with a psychology and physiatry assessment. Primmum's notice explained the purpose of these assessments as "Medical and Rehabilitation Benefit" and "Non-Earner Benefit." It also made specific reference to Drs. Hefford and Le's three OCF-18s recommending physiotherapy services.
16I.K.'s representative objected. By letter dated September 24, he took the position that Primmum was not entitled to an IE in relation to any medical or rehabilitation benefit. Further, he explained that, although I.K. would attend an IE concerning NEBs, he demanded "proper notice" of the examination, along with the questions that Primmum would pose to the assessor. I.K. then failed to attend the first of the three IEs.
17Primmum responded with two letters dated September 30, 2015. In the first, Primmum explained that, given I.K.'s non-attendance, it refused any further benefits in connection with Drs. Hefford and Le's three OCF-18s recommending physiotherapy. Primmum also demanded repayment of the costs it incurred as a result of I.K.'s non-attendance. In the second letter, Primmum requested the same three assessments, explaining their purpose as only "Non-Earner Benefit."
18I.K. failed to attend the first IE. On October 7, Primmum noted I.K.'s non-attendance and asked that he attend the remaining two IEs. By separate letter also dated October 7, it re-sent its notice of examination for the remaining IEs, again explaining their purpose as "Non-Earner Benefit."
19Again, I.K. failed to attend. Thus, by letter dated November 6, Primmum explained to I.K. that his NEB would remain suspended as of June 3, 2015 until he attended the necessary IEs.
I.K.'s application and Primmum's preliminary motion
20Some eight months later, on July 27, 2016, I.K. applied to the Tribunal to dispute his entitlement to NEBs, ACBs, and the unfunded portions of Drs. Hefford and Le's three OCF-18s recommending physiotherapy. I.K. also claimed that he was entitled to the $2,000 cost of a chronic pain assessment that Dr. Grigory Karmy recommended in an OCF-18 dated September 11, 2015.
21As part of its response, Primmum requested a preliminary issues hearing. The issues to be decided during this hearing were outlined as follows in the Tribunal's case conference order issued on November 2, 2016:
The Applicant failed to attend all scheduled independent medical examination and is in non-compliance with section 44 of the SABS. The Respondent is requesting that this application be dismissed pursuant to section 55 of the SABS. The Respondent is also seeking reimbursement from the Applicant of fees paid to the examiners for failure to attend the independent examinations in the amount of $3,733.95.
The Respondent states that the Applicant is not entitled to non-earner benefits as he was working. Further, he is not entitled to income replacement benefits since the Applicant did not pay income tax.
22I.K. filed submissions in response to Primmum's motion. I.K. argued that Primmum failed to provide him with the necessary "medical and any other reasons" explaining why it denied him benefits and requested IEs. Further, he argued that the IEs were not properly scheduled. Critically, however, he made no submissions concerning the scope of s. 55(1)2 or his entitlement to ACBs. He responded to Primmum's motion as though it were an all-or-nothing proposition: his application would either be barred or proceed in its entirety.
The Tribunal's decision
23In its decision of September 1, 2017, the Tribunal found that Primmum's various notices of examination were clear and unequivocal, and that I.K. had no reasonable explanation for his non-attendance. Therefore, although it held that it did not have the jurisdiction to make a reimbursement order, the Tribunal dismissed I.K.'s application. As the Tribunal explained at para. 64:
The evidence clearly demonstrates that the applicant did not make himself reasonably available. In addition, the applicant has not provided me with evidence to demonstrate that the respondent's notices were not compliant with the Schedule. The applicant was required to attend the IEs and failed to do so. Section 55 of the Schedule indicates that an insured shall not apply to the Tribunal if the insurer has provided the insured person with notice under s.44 and the insured has not complied. Pursuant to s. 55 of the Schedule, I find that the current application should be dismissed.
24I.K. now asks me to reconsider the Tribunal's decision. I explain and address his argument below.
Decision and Reasons
25Importantly, I.K. takes no issue with the Tribunal's findings. Rather, he bases his request on a single line of argument that he did not make before the Tribunal: despite his non-attendance at the IEs, he should still be allowed to advance his claim for ACBs given that Primmum never requested an IE in relation to that benefit. In this sense, he argues that s. 55(1)2 does not prohibit all applications filed by those who have missed an IE – just those applications disputing the same benefits for which the insurer requested the IE. Based on this interpretation, he argues that the Tribunal's decision to dismiss his application in its entirety was not within its jurisdiction, and that its refusal to allow the issue of ACBs to proceed was a violation of natural justice.
26After considering I.K.'s request, I begin by highlighting my discretion under Rule 18 of the Tribunal's Rules of Practice and Procedure. Under that rule, I "may" reconsider one of the Tribunal's decisions provided the request satisfies one of the criteria enumerated in Rule 18.2. I.K. argues that his request satisfies two of these criteria. Be that as it may, I decline to exercise my discretion to reconsider the Tribunal's decision.
27As explained above, I.K.'s request is based on an entirely new argument. The Tribunal's reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal. There may be exceptional circumstances in which a new argument should be permitted on a reconsideration, such as where the interests of justice require as much and where the argument can be fully and fairly determined on the basis of the Tribunal's record. Such circumstances, however, will be rare. The Tribunal should have the benefit of all of the parties' evidence and submissions before rendering its decisions – particularly given its primary duties of weighing evidence, finding facts, and interpreting legislation – while the reconsideration process should be strictly limited to overseeing the Tribunal's exercise of those duties. This approach promotes finality and both the Tribunal's and parties' efficient use of resources. It also prevents the reconsideration process from being turned into a separate adjudicative or fact-finding forum.
28In this case, the Tribunal's case conference order of November 2, 2016, Primmum's motion materials, and indeed I.K.'s own response to Primmum's motion framed the issue as whether s. 55(1)2 should apply to bar his application as a whole. For the reasons explained above, I.K. should not be allowed at this point to marshal an entirely new line of defence to Primmum's motion.
29Moreover, I cannot simply impose my own interpretation of s. 55(1)2 on the parties. Even if I were to consider the matter, the operative question concerning the scope of s. 55(1)2 – a matter of statutory interpretation, not a jurisdictional issue – would be whether the Tribunal's approach involved a significant error of law: see Rule 18.2(a). I.K. does little, even at this stage, to advance his cause. Aside from his general assertion that the Tribunal lacked jurisdiction and breached natural justice in applying s. 55(1)2 to his application as a whole, he advances little explanation of his position. He offers no legislative history or textual analysis of s. 55(1)2, no comparison between s. 55(1)2 and the parallel bars in earlier versions of the Schedule that might explain the former's meaning, and no authority in support of his position. In short, he leaves it entirely to me to interpret the scope of s. 55(1)2 and to discover the Tribunal's error. In the circumstances, therefore, I refuse to question the Tribunal's application of s. 55(1)2.
Conclusion
30This request for reconsideration is denied.
Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario
Released: February 26, 2018