Licence Appeal Tribunal
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
J.T.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR: Marisa Victor
Appearances:
For the Appellant: Joel Lewis, Paralegal
For the Respondent: Joe Crngarov, Claims Representative Jonathan Schrieder, Counsel
Heard: In Writing
Hearing: March 25, 2019
OVERVIEW
1The applicant, J.T., was involved in an automobile accident on August 24, 2012, and sought accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
2The main issues in dispute are whether the applicant is entitled to receive a weekly income replacement benefit for the period of July 13, 2016 to date and ongoing, the quantum for the income replacement benefit, whether the respondent is liable to pay an award under Regulation 664, and whether the applicant is entitled to interest on any overdue amounts.
3At the case conference on December 4, 2018, the Tribunal ordered a written hearing on the preliminary issues raised by the respondent as to whether the applicant is barred from commencing her application pursuant to s. 55(2) of the Schedule due to her failure to attend Insurer’s Examinations (“IE”s) and whether the applicant is non-compliant with s. 33 of the Schedule due to her failure to submit documents.
PRELIMINARY ISSUES
4I must determine the following two issues:
i. Is the applicant barred from commencing her application with the Tribunal pursuant to s. 55(2) of the Schedule due to her failure to attend IEs?
ii. Is the applicant non-compliant in accordance with s. 33 of the Schedule due to her failure to submit documents, and if so, what are the consequences resulting from the non-compliance?
RESULT
5The applicant is not barred from commencing her application due to her failure to attend IEs. However, the applicant may not proceed until she has attended the IEs requested by the respondent to asses her entitlement in the post-104 period for income replacement benefits (“IRB”s).
6The applicant is in compliance with s. 33 of the Schedule.
ISSUE 1 - IS THE APPLICANT BARRED FROM COMMENCING HER APPLICATION WITH THE TRIBUNAL PURSUANT TO S. 55(2) OF THE SCHEDULE?
Law
7Section 37(1) of the Schedule entitles the insurer to request IEs under s. 44 to determine if the insured person is still entitled to a specified benefit.
8Under s. 37(7), if the insured person fails or refuses to comply with the IE, the insurer may refuse to pay the benefits relating to the period after the insured person failed or refused to comply with the IE until compliance is achieved.
9Section 55(1) states that an insured person shall not apply to the Tribunal if the insurer has provided notice of an IE under s. 44 and the insured has not complied.
10The onus is on the insured person to establish a reasonable explanation for not attending an IE.1
Facts
11It is uncontested that the applicant did not attend a number of the IEs requested by the respondent.
12She initially failed to attend IEs scheduled in October 2012 and rescheduled from August to October 2014. These were to determine whether her injuries were outside the minor injury guideline. Following this period, the applicant did attend the requested IEs and benefits were reinstated.
13Further IEs were requested in 2015 to determine if the applicant had suffered a complete inability to engage in any employment for which she was reasonably suited (the “post-104 week period”). The applicant then failed to attend the five IEs scheduled in June 2016 with a psychiatrist (June 15), neurologist (June 21), functional assessment (June 24), vocational specialist (June 27), and physiatrist (June 30).
14The applicant’s representative advised on June 24, 2016 that the applicant was unable to attend the IEs due to severe migraines caused by withdrawal symptoms. This fax was sent 1.5 hrs before the third IE was scheduled to take place.
15On October 13, 2016, the applicant’s representative advised that the applicant was now medically able to attend the IEs if they were scheduled in November or anytime afterwards. The respondent rescheduled the IEs for November 2016. The applicant failed to attend the first three IEs and so the respondent cancelled the final two.
16On December 13, 2016, the applicant’s representative again requested the rescheduling of the IEs now for mid-January 2017. This request was denied by the respondent on the basis that the applicant has not supplied medical evidence to support her reasons for missing the previously scheduled IEs.
Respondent’s Position
17The respondent states that the applicant’s entire application is barred from proceeding before the Tribunal pursuant to section 55. The respondent relies on IK v Primmum Insurance Company, 2018 CanlII 13162 for that proposition.2
18The respondent also submits that the applicant has failed to file any evidence to support her position that she was unable to attend the IEs as a result of migraines and other withdrawal symptoms. The respondent states it reviewed Dr. Bawa’s clinical notes and records provided for all periods up to June 2016 and they fail to indicate migraines or any other opiate withdrawal symptoms.
19The applicant has offered to attend the IEs both immediately following the missed IEs in November 2016 and up to and including in her preliminary hearing submissions. The respondent states that there is no timeline for compliance but that the applicant does not have an unlimited amount of time to comply with her obligations.
Applicant’s Position
20The applicant states that she became addicted to Percocet which she took in order to manage the pain she experienced as a result of the accident. She submitted a diagnosis of opioid dependence as an exhibit.
21The applicant advises that on June 2, 2016, she decided to discontinue Dr. Bawa’s substance abuse dependency program. She states that she felt able to overcome the addiction on her own. As evidence she submits her OHIP records which show no further meetings with Dr. Bawa after June 2016.
22The applicant states that she was then unable to attend the IEs from June 15 to November 2016 due to withdrawal symptoms.
23The applicant’s representative submits that the applicant communicated in a timely manner “more often than not” when she was unable to attend IEs, has requested their rescheduling and provided a reason for why she was unable to attend. The applicant requests that the Tribunal impose terms and conditions such as those made in the Tribunal decision of 17-007683 v Aviva Insurance Canada, 2018 CanLII 81958 (ON LAT). In that case the Tribunal ordered the applicant to attend IEs required by the respondent and ordered the respondent to provide new IE dates within a certain time period from the release of the decision.
Analysis
24I find that the applicant is not barred by operation of s. 55 of the Schedule. The applicant has provided a reason for her inability to attend the IEs - her withdrawal symptoms. I find that this explanation shows that she failed to attend as a result of a valid medical condition and therefore requires accommodation.
25The applicant’s evidence is uncontested that her addiction to Percocet is as a result of the pain caused by the motor vehicle accident at the heart of this dispute. Further, while no medical evidence was filed to support her position that she suffered migraines and withdrawal symptoms on the days of the missed IEs in June and November 2016, she has provided evidence that she was addicted to Percocet and that she discontinued her treatment program with Dr. Bawa prior to the missed the IEs in June 2016. I therefore find that her reason for missing the IEs, due to migraine and withdrawal symptoms, is a credible reason. Further, the applicant’s condition was communicated to the respondent at the time of the missed IEs which adds to the credibility of the reason. Finally, the applicant has attempted to reschedule the IEs soon after they were missed.
26I do not take into consideration the missed IEs in 2012, which were resolved in 2014. Those IEs were on a different subject matter (the minor injury guideline) and the IEs were eventually completed.
27In considering the 2016 missed IEs, these were missed and rescheduled twice. The applicant made efforts to reschedule a third time, but these were denied by the respondent. The respondent agrees there is no timeline for compliance. I was not given any case law that suggests at what point the applicant should be permanently barred from appeal, which is a severe penalty.
28Section 55(1)(2) of the Schedule states that an insured person who fails to comply with a s. 44 IE shall not apply to the Tribunal. However, s. 55(2) states that the Tribunal may permit an insured to apply despite the above-noted section. The Tribunal may also impose terms and conditions on permission granted under s. 55(3).
29The applicant should not be barred from applying to the Tribunal given that a reasonable and credible explanation related to a medical condition was provided, albeit on a few occasions after the missed IE. However, barring the applicant seems overly harsh in the circumstances of this matter. That being said, the applicant has not yet complied with the IEs and there is no evidence that the requested IEs are unreasonable. The respondent should be provided with the opportunity to assess the applicant’s condition and continuing entitlement to specified benefits. The timeline for completing these IEs is not endless, therefore this claim cannot proceed until the applicant has complied with the IEs requested to assess her post-104 period eligibility.
30The respondent will have 10 days from the date of this decision to propose a revised IE schedule for all examinations to be completed within 3 months of this decision. The applicant must attend the IEs if she wishes to continue with the Tribunal Application. The respondent must ensure that the IE reports are completed and exchanged in accordance with the Schedule.
ISSUE 2 - IS THE APPLICANT NON-COMPLIANT IN ACCORDANCE WITH S. 33 OF THE SCHEDULE, AND IF SO, WHAT ARE THE CONSEQUENCES RESULTING FROM THE NON-COMPLIANCE?
Respondent’s Submissions
31The respondent states that it has requested income tax information from the applicant in order to determine the quantum of IRBs the applicant is entitled to.
32The respondent states it is not obligated to pay any benefits that were withheld during the period of non-compliance unless there is a reasonable explanation for the delay in compliance (s. 38(8)(b) of the Schedule). There must be evidence of an effort made to obtain documents.3
33The respondent requested further income information on April 6, 2015 with a second request sent August 17, 2015. It states this request was for:
a. Confirmation of share ownership in a company owner by her husband where she worked as manager; b. Employment history from January 2011 to March 2015; c. Details of EI received during 2011, 2012, 2014 and 2015; d. Other benefits received after the accident; e. Description of self-employment business from 2012, 2012 and 2014 tax returns; f. Copies of the 2011 - 2014 T1 tax returns; g. 2014 notice of assessment; h. T2 corporate income tax return for the business; i. Monthly revenue from the business from January 2011 to March 2015; j. Motor vehicle expenses related to her business; k. Monthly expenses for her business; and l. Copies of supporting document for business costs incurred as a result of the accident.
34On March 24, 2016, May 30, 2016 and June 6, 2016 the respondent states it requested:
a. income tax documentation for 2015; b. Monthly revenue of the business from January 2011 to December 2013; c. Confirmation of the date the business resumed operation; and
35The respondent states that the above requests remain outstanding.
36The respondent argues that the non-compliance has prevented it from determining the applicant’s entitlement to IRBs as well as the quantum as of at least April 6, 2016 (10 days after the March 24, 2016 request).
37The respondent argues that the applicant is non-compliant with the s. 33 requests and therefore the dispute cannot proceed before the Tribunal. The respondent states that the applicant has not provided any explanation for her failure to comply with the s. 33 requests. Finally, the respondent states that the applicant has not provided documents required in order to determine IRB quantum and that in any event, this dispute must fail.
38The respondent states that its authority to request documents comes from s. 33 and therefore every request for documentation is a s. 33 request whether or not that section is mentioned.
Applicant submissions
39The applicant states that she provided her 2011, 2012 and 2013 tax returns on August 27, 2014. She then retained ADS Forensics to provide documents requested by the respondent’s independent accountant, Jarvie & Company. ADS Forensics produced a report. On August 21, 2015 the respondent agreed to pay IRB benefits from August 12, 2014 to July 13, 2016.
40The applicant states that all further requested for documents were responded to multiple times:
a. January 4, 2016 - the applicant provided the 2012, 2014 Notices of Assessment; 2011, 2012, 2013 and 2014 tax return summaries with T4s, 2011 Record of Employment and 2011-2013 Income tax return information; b. January 27, 2016 - the applicant answered several questions. She adds that self-employment was related to babysitting and no documentation for those services is available; c. April 2016 - the 2015 tax information will be provided when available; and d. May 31, 2016 - the applicant states responses to the Jarvie requests were made in January 2016 and April 2016.
41Finally, the applicant argues that the requests for documentation did not specifically state that they were s. 33 requests and as such they do not qualify as s. 33 requests together with the consequences of non-compliance and non-payment of benefits.
Analysis
42Section 33 allows the respondent to request business and personal tax records to calculate the quantum of IRBs payable. A section 33 request must detail the required documents, the fact that the applicant has 10 days to produce the information and the repercussions for failing to do so.
43The respondent’s requests are not valid s. 33 requests. Although there is no requirement that the respondent specifically mention s. 33 of the Schedule, I find that the requests for information were vague as to the documents required, non-responsive to the answers provided by the applicant over time, and did not mention the time required to comply, nor the consequences for non-compliance.4
44The respondent has not submitted the March 24, 2015 request as evidence.
45The April 5, 2015 explanation of benefits does not mention s. 33, the specific documents requested by the respondent, the time limit for replying nor the consequences for non-compliance. The request simply refers the applicant to the Jarvie & Company report and requests that the applicant, “Please provide Jarvie & Company with the information outlined on pages 7-9 of their report so that they may determine the IRB payable.”
46The March 24, 2016 explanation of benefits refers again to the Jarvie & Company report and asks the applicant to, “Please review the supplemental information on page 9 of the report, that will be required in order to consider any further quantum IRB payable.”
47The May 30, 2016 explanation of benefits, while specifically requesting some documents, does not give a timeline for responding or the consequences for non-compliance. Instead it ends with “kindly provide this requested information at your earliest convenience.”
48The June 6, 2016 explanation of benefits requests the 2015 tax return and notice of assessment, a listing on monthly business revenue from January 2011 to December 2013 and confirmation of the date the business resumes operating (if applicable). Again, it ends by stating: “kindly provide this requested information at your earliest convenience.”
49Because the respondent does not reply to the answers and documents provided by the applicant in her faxes from January to May 2016, it is unclear as to how the respondent’s continued requests for further documentation is reasonable. The respondent, in its submissions, states that all the requests for documents are outstanding, yet the applicant has provided evidence of corresponding answers and documents. In particular, the applicant’s January 27, 2016 response indicates it is attaching the 2014 Notice of Assessment, copies of tax returns, and answers including the description of the company as a babysitting company with no documentation available for services rendered, and answers regarding motor vehicle expenses and business expenses.
50As I have found that the applicant is compliant with s. 33, there are no consequences that flow from non-compliance.
CONCLUSION
51The applicant is not barred from applying to the Tribunal under s. 55 of the Schedule. The respondent will have 10 days from the date of this decision to propose revised IE dates which must be completed within 3 months from the release of this decision. The applicant must attend the IEs if she wishes to continue with the Tribunal Application. The respondent must ensure that the IE reports are completed and exchanged in accordance with the Schedule.
52The applicant is compliant with s. 33 of the Schedule therefore there are no consequences that flow from non-compliance.
Released: September 4, 2019
Marisa Victor Adjudicator
Footnotes
- See 17-005447/AABS v The Co-operators, 2018 CanLII 13179 (ON LAT) at paras. 14 and 17.
- In that case, the applicant failed to attend a number of IEs. He then applied to the Tribunal for dispute resolution of the denied benefits, the purpose of the requested IEs, as well as attendant care benefits, something that had not been subject to an IE. The insurer raised the preliminary issue that the applicant was barred from proceeding due to s. 55 of the Schedule. The applicant argued that the missed IEs had lacked adequate notice. The Tribunal determined the applicant was barred from proceeding. On reconsideration the applicant raised for the first time that his application to the Tribunal for dispute resolution related to attendant care benefits should not be barred as it was not the subject of the missed IEs. The reconsideration confirmed the earlier decision as this argument had not been made at the first instance.
- F.F. v. Aviva Canada, 2017 CanLII 77381 (ON LAT) at para. 25.
- See for example 16-004212 v Allstate Insurance Company of Canada, 2017 CanLII 77394 (ON LAT) at para 14.```