Licence Appeal Tribunal
Tribunal File Number: 18-000813/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:
Y.H.C.
Applicant
and
Co-operators General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION
PANEL:
Jesse A. Boyce, Adjudicator
APPEARANCES:
For the Applicant:
Fawad Siddiqui
For the Respondent:
David Raposo
HEARD In Writing on:
February 6, 2019
OVERVIEW
1The applicant, Y.H.C., was injured in a motor vehicle accident on April 9, 2016. Y.H.C. sought benefits from the respondent, Co-operators General Insurance Company (“Co-operators”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”).
2Co-operators approved certain benefits up to the $3,500.00 limit of the Minor Injury Guideline (the “MIG”). It denied Y.H.C.’s application for non-earner benefits and several other treatment and assessment plans on the basis that her injuries fall within the MIG and that she had failed to attend properly scheduled s. 44 Insurer’s Examinations (“IEs”). Y.H.C. disagreed with Co-operators’ position and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
3At the case conference between the parties, Co-operators raised the preliminary issue that Y.H.C. is statute-barred from proceeding with her application due to her non-attendance at the scheduled IEs. The parties were unable to resolve the dispute and proceeded to this written hearing on the following preliminary issues.
PRELIMINARY ISSUES
4The following are the preliminary issues to be decided, as per the Case Conference Order dated July 31, 2018:
i. Is the applicant barred from proceeding with her claim for non-earner benefits, as she failed to submit to an insurer’s examination under section 44 of the Schedule?2
ii. Is the applicant barred from proceeding with her claim for an attendant care assessment in the amount of $1,771.31, as she failed to submit to an insurer’s examination under section 44 of the Schedule?
iii. Is the applicant barred from proceeding with her claim for psychological services in the amount of $8,738.06, as she failed to submit to an insurer’s examination under section 44 of the Schedule?
iv. Is the applicant barred from proceeding with her claim for psychological services in the amount of $8,738.06, as she failed to submit to an insurer’s examination under section 44 of the Schedule?
RESULT
5I find that Y.H.C. is statute-barred from proceeding with her application before the Tribunal under s. 55(1)2 of the Schedule, due to her failure to attend at properly scheduled s. 44 IEs.
ANALYSIS
The Denials and Notices
6I find on the evidence that all of Co-operators’ denials were proper and in accordance with the requirements outlined in jurisprudence, namely that the notices of refusal to pay benefits contained clear language, were directed towards an unsophisticated person, and outlined the dispute resolution process, including the relevant time limits. I also find that there is no evidence that Co-operators did not respond to Y.H.C.’s claims within the relevant time period, that its medical reasons were invalid or that it did not provide notice that it believed the MIG applied.
7In a similar vein, I also find that all of the notices of s. 44 IEs provided by Co-operators were proper and in accordance with the requirements of the Schedule. Frankly, I find that Co-operators went beyond the scope of its obligations to notify Y.H.C. and accommodate her at the IEs, despite her repeated refusals. At one point in the process, Co-operators even removed reference to the MIG in its s. 44 IE request in order to placate Y.H.C. into attendance, although it did not have to do so.
Section 44 and the MIG
8I find that Y.H.C. and her counsel have severely misconstrued the various sections of the Schedule that pertain to the MIG and IEs and that this misinterpretation has resulted in a strategy of unreasonably refusing to attend properly scheduled s. 44 IEs. The result, in my view, is that Y.H.C. is statute-barred from proceeding with her application until such time as she attends at the s. 44 IEs.
9As I understand it, Y.H.C. submits that the real issue to be decided in this hearing is whether or not Co-operators can subject her to a s. 44 IE for the purpose of determining the applicability of the MIG, in light of the absence of any explicit reference in the Schedule permitting same. She argues that the MIG falls outside the scope of inquiry of a s. 44 IE and that using an IE to determine MIG would be reversing the onus of proof. In support of her assertion, Y.H.C. refers to ss. 38(8), (9) and (10), 44(1), and 55(1) of the Schedule, arguing that “nowhere in any of the noted provisions, nor in any other section of the SABS, is it permissible for an insurer to compel an insured to participate in an Insurer’s Examination under s. 44, specifically for the purposes of determining applicability of the MIG.”
10Further, she argues that s. 38(10) states that if a benefit is denied or if an insurer believes the MIG applies, the insurer "may notify the insured" that it requires an exam under s. 44. Y.H.C. submits that “[T]he reach of this provision stops there; it does not state that the IE can be conducted to specifically address the applicability of the MIG. Section 44 subsequently states that an Insurers Examination may be required to help determine if the insured ‘is or continues to be entitled to a benefit.’” Y.H.C. then argues—correctly—that the MIG is a tier, and not a benefit, and states that should an OCF-18 be denied because Co-operators believes the MIG applies, that it is only permitted to conduct an IE to address that specific OCF-18 and not the applicability of the MIG.
11I disagree.
12While I agree that the MIG itself is not a benefit, the other benefits at issue in this application are. A determination of whether the MIG designation applies to Y.H.C. is required before determining whether the benefits at issue are reasonable and necessary.
13Section 38(9) indicates that if an insurer believes that the MIG applies, the notice it provides to the insured must so advise the insured person. Here, I find that there is no dispute that Co-operators advised Y.H.C. in its correspondence that it believed that her injuries fall within the MIG. Y.H.C. does not dispute this.
14Moving to s. 38(10), which states that if an insurer has not agreed to pay for the proposed goods in a treatment plan or believes that the MIG applies, the notice under subsection (8) may notify the insured person that the insurer requires that the insured undergo a s. 44 IE. Clearly, in accordance with s. 38(10), if an insurer believes the MIG applies, it is entitled to notify the insured person that it requires an IE under s. 44. I agree with Co-operators’ submission that if an insurer is not entitled to ask an IE assessor to address the applicability of the MIG that it would render s. 38(10) meaningless.
15Co-operators also correctly points out that s. 44(3) of the Schedule states that s. 44(1) does not apply with respect to a benefit payable in accordance with the MIG. However, I find that it is clear that the issues in dispute and the basis of the proposed s. 44 IEs are benefits that do not fall within the MIG, being non-earner benefits, psychological services in the amount of $8,738.06, as well as the attendant care and psychological assessments.
16Further, while I note that s. 44(3)(a) states that s. 44 does not apply with respect to a benefit payable in accordance with the MIG, I find that it does not specifically state that an IE cannot address the MIG. Rather, I agree with Co-operators that the intention of s. 44(3)(a) is to preclude an insurer from forcing an insured into an IE on the original block of approved treatment ($2,200.00) or for an IE on any treatment that falls within the MIG. As noted by Co-operators in its submissions, it approved Y.H.C.’s initial block of treatment and did not request any IEs until Y.H.C. submitted treatment plans that clearly fall outside of the MIG limit.
17Additionally, I follow Co-operators’ point that an inquiry as to whether the insured person's alleged impairments fall within the MIG is a clear prerequisite to determining whether the treatment plans are reasonable and necessary. For example, a treatment plan may be reasonable and necessary but not payable to Y.H.C. by virtue of her impairments being within the MIG and therefore subject to the monetary limit of $3,500.00. In submissions, Y.H.C. argues that a MIG determination can be done via paper review, which is less intrusive than an IE. While this may be true, it is not a reasonable excuse to not attend a properly requested and scheduled s. 44 IE.
18Finally, s. 55(1)2 of the Schedule places a restriction on an insured person from applying to the Tribunal where they have been provided with proper notice of an IE under s. 44 but have not complied. As mentioned, I find that all of the denials and notices provided by Co-operators to Y.H.C. were proper and in accordance with the Schedule and jurisprudence. On this basis—and without a reasonable excuse for her non-attendance—I do not find it appropriate to exercise the Tribunal’s discretion under s. 55(2) and permit Y.H.C. to apply despite her non-compliance. Accordingly, I find that Y.H.C. is statute-barred from applying to the Tribunal until she attends at the s. 44 IE’s.
CONCLUSION
19For these reasons, Y.H.C. is statute-barred from proceeding with her application before the Tribunal under s. 55(1)2 of the Schedule, as I find that she has failed to attend at several properly scheduled s. 44 IE’s.
Released: February 21, 2019
___________________________
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10.
- This particular issue was originally framed as a failure to comply with s. 36 of the Schedule. In written submissions, Co-operators conceded that s.44 formed the proper basis for this preliminary issue.