M.D. v. Aviva General Insurance Company, 2019 CanLII 130373

Citation: [M.D.] vs. Aviva General Insurance, 2019 ONLAT 18-011889/AABS

Released Date: December 27, 2019

Tribunal File Number: 18-011889/AABS

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:

M.D.

Applicant

and

Aviva General Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Chloe Lester, Vice-Chair

APPEARANCES:

For the Applicant:

Vahe Avagyan, Counsel

For the Respondent:

Gina Nardella, Counsel

Hearing Date:

August 19, 2019

Overview

1The applicant, MD, was involved in a car accident on August 1, 2015. He then applied for benefits under the Schedule,¹ including an income replacement benefit (IRB). The respondent, Aviva General Insurance Company, denied him the benefit. In response, the applicant filed an Application for Dispute Resolution to the Tribunal² to, among other things, dispute his entitlement to the IRB.

2The respondent requested a preliminary issue hearing to determine whether the applicant was precluded from proceeding with his IRB claim, pursuant to s. 55(1) of the Schedule, because he failed, without a reasonable explanation, to attend an insurer’s examination (“IE”).

3This decision answers that preliminary issue. As outlined below, I find the respondent failed to provide the applicant with sufficient notice of the IE and, therefore, the IRB claim should proceed to a hearing on the merits.

Issues

4As mentioned above, the central issue in this preliminary hearing is whether the applicant is precluded from proceeding to a hearing on the issue of IRB because they failed to attend the s. 44 assessments.

5However, there is also a second issue. The parties ask me to determine the date the Disability Certificate (OCF-3) was submitted to the insurance company. Strictly speaking, this issue is unrelated to the first and concerns the substantive determination of IRB. That being said, the parties at the case conference asked for this factual determination to be made at this time. Even though the determination of this issue is not a preliminary matter, I will be answer in my decision, as I heard first-hand testimony.

Background:

6The applicant was injured in a car accident on August 1, 2015 and applied for benefits from the respondent.

7The subject of this preliminary hearing concerns the applicant’s entitlement to IRBs. He applied for IRBs on the basis that he was not able to continue working as a mechanic as a result of the car accident injuries. Although he had some pre-existing knee impairments, it was only after the car accident that he was diagnosed with a torn meniscus and, for that reason, had surgery on his knee. He stopped working by the end of October 2016. The applicant’s chiropractor filled out a Disability Certificate (“OCF-3”) dated November 18, 2016, confirming the same.

8The respondent claims it never received that OCF-3 until June 11, 2018, when it was sent by the applicant’s lawyer. At that point, the respondent requested a series of s. 44 assessments in order to determine entitlement to IRBs. These were arranged in July 2018. The assessments were postponed until November of that year as the applicant had surgery sometime in July. However, the applicant did not attend those assessments on the basis that the respondent did not provide him with a proper notice of examination in accordance with the Schedule.

9The respondent never paid the benefits and as a result the applicant filed an application to the Tribunal. Because of the applicant having never attended the IE’s, the respondent asks for a preliminary hearing to determine whether the applicant is precluded from proceeding to a hearing on this issue pursuant to s. 55 of the Schedule.

Motions Filed by the Applicant and Respondent:

10The preliminary hearing consisted of in-person testimony of the chiropractor followed by written submissions. In response to the respondent’s submissions, the applicant filed a motion asking that the arguments for this hearing be limited to the issues agreed upon at the case conference and an order for costs.

11The respondent argues that the preliminary hearing concerns the two issues agreed upon by the parties. It also claims the applicant’s response submissions contravene the allotted 12 pages double-spaced and are instead 26 pages long single-spaced. While the respondent is certainly right, it does not identify any resulting prejudice or requested relief.

12The parties have confirmed in-person at the hearing and through their submissions that there are two main issues that must be answered, and they were listed above under the issues section. The respondent’s submissions having to do with s.33, s.32, and s.36 are not relevant to these proceedings and can be re-argued if the issues moves forward to a substantive hearing.

13The applicant is seeking costs because the respondent unilaterally amended its response and added issues that were not identified in the case conference report and order. The applicant is seeking costs because they are now required to argue the additional issues. I fail to see how these arguments amount to the conduct outlined in the Tribunal’s Rule 19 and warrant costs. This is a very high onus to meet and the applicant has not articulated any other submissions or evidence to substantiate the claims.

14The applicant’s motion is granted in part. The preliminary hearing decision will be limited to the preliminary issues raised at the case conference and the additional arguments will not be considered. The applicant’s request for costs are dismissed.

15Despite the applicant’s submissions being 26 pages in length, many of the paragraphs concerned the additional arguments raised by the respondent. Since those arguments have no bearings on this hearing, the additional pages responding to the respondent’s supplementary arguments will not be considered and I’m left with roughly 12 pages. I find there has been no prejudiced caused to the respondent.

Respondent’s Motion to Strike Arguments

16The respondent filed a Notice of Motion on November 12, 2019 that the applicant’s reply submissions filed on November 8, 2019 were improper and do not comply with my order.

17Based on the various motions received, I ordered a timeline for submissions on the preliminary hearing and the motions. I ordered that the applicant may file any reply submissions on the Notice of Motion filed by the respondent on November 8, 2019.

18The respondent argues that those reply submissions not only deal with the Notice of Motion but also additional closing argument submissions. It requests that paragraph 1-57 and 62-76 of the applicant’s submissions be struck from the record as they do not comply with my order.

19The applicant responded stating that the 76 paragraphs were necessary to support their position and respond to the respondent’s submissions and arguments.

20I find that the applicant exceeded the pages ordered by me. He was ordered to submit his reply submissions within 5 pages but instead filed 14 pages. The order was only for reply submissions on his motion and they submitted arguments not only on the motion but also on the entire hearing. I will only consider the first 5 pages of their submissions and only the arguments that pertain to the motion. Any improper reply arguments will also not be considered.

The Applicant is not Precluded from Proceeding to a Hearing on the Issue of Income Replacement Benefits

21The respondent argues the applicant is precluded from proceeding to a hearing on the issue of IRBs in accordance with s. 55 of the Schedule because he failed to attend a s. 44 IE’s and failed to give a reasonable explanation for not attending. To that end, the respondent relies on numerous decisions³ to support its position that the applicant is required to attend an examination to ensure procedural fairness, that the IE’s must be completed in a timely manner, that the applicant must have a reasonable excuse for attending versus that it’s a mere inconvenience.

22The respondent also relies on a number of decisions to support its position that the notice it provided to the applicant followed all the requirements in the Schedule and that the applicant’s failure to attend results in being precluded from proceeding to a hearing on that issue.⁴

23The applicant argues that the reason why he didn’t attend was because the notice was deficient and did not comply with the Schedule. The applicant relies on 17-007683 v. Aviva⁵ to support his position that the s. 44 notice provided to him did not follow the requirements under the Schedule.

24Section 44(5) of the Schedule sets out the requirements for the notice of examination to include:

(i) the medical and any other reasons for the examination;

(ii) whether the attendance of the insured person is required at the examination;

(iii) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(iv) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days. O. Reg. 34/10, s. 44 (5).

25The applicant is arguing that the notice is contrary to every principle outlined in 17-002921 v. Aviva⁶, but is mainly arguing that in general, the notice is not clear especially when it comes to the “medical and any other reasons” listed in the letter.

26The question is really whether the notices provided to the applicant were clear that an unsophisticated person would have understood what it was for and what is required of them, and did they explain the “medical and other reasons” for the examinations. I find the notice did not comply with the “medical and other reasons” required under the Schedule and that the notice was not clear.

27The letters received by the applicant stated the following regarding the “medical and any other reasons”:

Explanation of Benefits dated June 25, 2018 “…the disability period appears to be inconsistent with the diagnosis or mechanism of injury, therefore we are arranging insurer’s examinations to address your initial entitlement to an income replacement benefit.”

Letter regarding IE dated July 3, 2018 and November 13, 2018 “We’re unable to determine whether the recommendations made on your Disability Certificate meet the disability requirement for the specified benefit you are claiming…”

“Medical reason: The disability period appears to be inconsistent with the diagnosis or mechanism of injury.”

28The letters are not clear that an unsophisticated person would know why they are being required to attend for the examinations. The medical reasons that are being given are contradictory, ambiguous and confusing. Is it that the diagnosis is inconsistent with the period of time the applicant is claiming for the benefit or, is it whether the applicant meets the test for the benefit? What recommendations were made on the disability certificate? What are the disability requirements the respondent is referring to, and what benefit is the respondent conducting the examinations for?

29The respondent argues the notices are clear and plainly spell out that the assessments are for a post 104 IRB entitlement. They argue this is supported by the fact that one of the assessments is to determine if the applicant has any transferable skills which would only apply to a post 104 IRB entitlement.

30I find the respondent’s arguments contradictory to what was written to the applicant’s explanation of benefits, that the assessments were for the initial entitlement to the benefits and that it wouldn’t be able to “consider payment for the INCOME REPLACEMENT BENEFITS-POST - 104 WEEKS until we receive the results of your examination.” That indicates to me that a determination for a post-104 week IRB entitlement would come subsequent to the results of the assessments having to do with initial entitlement to the benefit. This is inline with s. 6 of the Schedule which does not require an insurer to pay for a post-104 IRB until the applicant has proven they met the pre-104 IRB disability test.

The Disability Certificate (OCF-3) was submitted in or around November 18, 2016

31The parties have also asked me to determine when the Disability Certificate (OCF-3) was submitted to the insurance company because entitlement may only begin once an OCF-3 is submitted to the respondent.

32The applicant claims he submitted his OCF-3, in and around November 18, 2016. The chiropractor testified that he sent it in by mail. The respondent argues that it never received the OCF-3 until June 11, 2018.

33Since the issue of IRB may proceed to a hearing, the date in which the OCF-3 was submitted to the insurance company becomes important regarding entitlement to the benefit.

34As per s. 36(3) of the Schedule an applicant cannot be entitled to a specified benefit for any period before the OCF-3 is submitted.

35The respondent argues that, despite the Disability Certificate (OCF-3) being dated November 18, 2016, it was never received until June 11, 2018 and therefore, entitlement could not begin until after that date.

36The applicant’s chiropractor testified that he sent it via mail in and around the date it was completed, November 18, 2016. The applicant has the onus to prove that it was sent around that time.

37I find that the applicant has proved his onus and I believe that the applicant’s chiropractor submitted the OCF-3 to the respondent in around November 18, 2016 for the following reasons:

(i) The Discharge Report (OCF-24) dated January 11, 2016 confirmed that the applicant lost time from work as a result of his accident-related injuries and was not able to complete his pre-accident work activities.

(ii) The chiropractor had intended to complete an OCF-3 on behalf of the applicant and submit it to the respondent. This is outlined in an email from the chiropractor to the applicant’s counsel on March 21, 2016.

(iii) The history of emails and conversations with the adjuster prove that the applicant’s counsel thought the OCF-3 had already been submitted to the respondent and did not inquire any further. According the adjuster’s log notes, the adjuster advised applicant’s counsel on November 19, 2016 that an OCF-3 had not been submitted. The adjuster called the chiropractor just a few short minutes later and the information regarding the missing OCF-3 was not relayed to the chiropractor. At this point, both the adjuster and the lawyer would not have received the OCF-3 through the mail yet. That being said, the applicant’s counsel denies that a conversation with the adjuster ever took place on November 19, 2016 because it was a Saturday and he would not have been working. It was shortly after this date that the applicant’s lawyer would have received the OCF-3. This was later confirmed in an email to the adjuster on June 11, 2018. At this point the lawyer thought the OCF-3 had been received by the adjuster because there was no other communication regarding the OCF-3 until June 6, 2018 when the applicant’s lawyer inquired about the claim for IRB.⁷

(iv) The respondent was aware the applicant was not working since October 2016. Information from multiple IE’s confirmed the applicant had not worked since that time.⁸ The respondent did not follow up at any point with the applicant indicating they had not received an OCF-3.

(v) The date of the OCF-3 corresponds with the date the applicant ceased working.

(vi) The respondent accepted the request for benefits. At the time the respondent received the OCF-3, being June 2018, it was well past the pre-104 entitlement, yet in an Explanation of Benefits letter dated June 25, 2018 the respondent accepted the request for benefits by arranging insurer’s examinations to address the initial entitlement to the income replacement benefit.

(vii) I also have no reason not to believe the chiropractor. The respondent in their submissions, argue that since the chiropractor did not have proof, he had sent the OCF-3 through mail and no proof that his fax machine was not working should be enough to disprove the fact the chiropractor had not submitted the form during that time. I disagree. What the respondent suggests is impossible. Is the chiropractor supposed to take a picture of every letter they send to an insurance company? Or produce evidence that their fax machine line is down? In this case, the evidence would have had to be held on for over three years. This is an impossible task suggested by the respondent. Even though the Schedule does not specify how an OCF-3 should be received, s. 64, allows for notices to be received through mail, so I see no reason why other documents cannot be received this way as well.

38The respondent argues that the applicant must inform the insurer of their intention to apply for a benefit as per s. 32 of the Schedule and a completed OCF-3 and OCF-2. They rely on 16-001739 v. Aviva⁹ and Sumila v. Gore Mutual Insurance¹⁰ to support their position that the applicant did not inform them of his intention to apply for the IRB because he did not fully complete the application for accident benefits, election of benefits form and an OCF-3 and therefore disentitles them to the benefit.

39I disagree. In this case the applicant notified the respondent of their intention to apply for an IRB when an OCF-3 was completed on his behalf indicating he met the required test for the benefit in November 2016. This was also corroborated with the information contained in the discharge report and insurer’s examinations. Although there is a disagreement as to when the OCF-3 was submitted, the requirement to have a completed OCF-3 was complied with.

40The applicant, on a balance of probabilities, has proven that the disability certificate was submitted to the respondent in and around November 18, 2016.

Conclusion

41Since the Notice of Examination was not clear and did not specify the “medical and other reasons” for the assessments, the applicant is not obligated to attend until such time that a proper notice has been given. The applicant is not precluded from a hearing on the merits of the IRB.

Order

42A case conference will be arranged by the Case Management Officer within 30 days of the release of this decision.

Footnotes

1. 1Statutory Accident Benefits Schedule -Effective September 1, 2010 (the “Schedule”)
2. 2Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
3. 3F.S. and Belair Insurance Company Inc., [1996} 0.1.C.D. No. 92.; Gonsalves and Certas Direct Insurance Company, [201 J] O.J. No. 3290); Zhang and Security National Insurance Co./Monnex Insurance Mgmt. Inc., [2015} O.F.S.C.D. No. 167; Luo and Unica Insurance Inc., [2015} 0.F.S.C.D. No. 29; Chen and Personal Insurance Company of Canada [2015} O.F.S.C.D. No. 13
4. 416-000248 v Co-operators General Insurance Company, 2016 CanLII 96170 (ON LAT); 16-002772 v Aviva Insurance Company, 2017 CanLII 33689 (ON LAT); 17-004109 v Intact Insurance Company, 2018 CanLII 112114 (ON LAT); A.H. v. Certas Home and Auto Insurance Company, 2018 CanLII 141009 (ON LAT); 17-000465 v Aviva General Insurance 2017 CanLII 62209 (ON LAT)
5. 517-007683 v Aviva Insurance Canada, 2018 CanLII 81958 (ON LAT)
6. 617-002921 v Aviva Insurance Canada, 2018 CanLII 76416 (ON LAT)
7. 7Adjuster’s Log Notes
8. 8IE by physician report dated January 31, 2017, IE orthopaedic surgeon report dated April 20, 2017, Applicant’s orthopaedic surgeon report dated May 4, 2017, and IE orthopaedic surgeon report dated November 5, 2018
9. 9M. R. v Aviva Insurance, 2017 CanLII 33650 (ON LAT)
10. 10Sumila v. Gore Mutual Insurance Co. Financial Services Commission of Ontario (Arbitration Decision) 2016 CarswellOnt 21184