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:
A.L.
Appellant(s)
and
The Personal Insurance Company
Respondent
DECISION [AND ORDER]
PANEL:
Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant:
Lisa Bishop
For the Respondent:
Thelson Desamour
HEARD In Writing on:
February 26, 2018
OVERVIEW
1The applicant A.L. was involved in an automobile accident on July 9, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2A.L. applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied by the respondent (“the Personal”).
3The benefits in dispute in this appeal include attendant care benefits (ACBs), an attendant care needs assessment, a physiotherapy and a psychological assessment.
4A.L. failed to attend a number of IEs scheduled by the Personal.
PRELIMINARY ISSUE
5In a motion dated March 7, 2018, the Personal asked the Tribunal to determine the following issues:
- Is A.L. barred from commencing this application because he failed to attend insurer’s examinations (IEs) requested by the respondent under s.44 of the Schedule?
6The Tribunal ordered this preliminary issue to be re-heard after an administrative error resulted in the omission of a key piece of the Personal’s evidence in a previous hearing.
FINDINGS
7A.L. is barred from commencing his application. The Personal’s motion is allowed.
8The Tribunal has no jurisdiction to order the payment of the Personal’s IE cancellation or any other claim adjustment costs.
9A.L.’s requests for costs associated with this proceeding are dismissed.
REASONS
A.L.’s Duty to attend scheduled IEs
10Section 44(1) of the Schedule governs IEs and prescribes as follows:
i. S. 44(1) permits an insurer to require an insured person to be examined by one or more regulated health professionals to determine whether the insured continues to be entitled to a specific benefit, as in this case.
ii. S.44(9)2.ii. requires the insurer to make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured person.
iii. S.44(9)2.iii. requires the insured person to attend the examination and to submit to all reasonable examinations requested by the examiner(s).
11The onus is on the insured person, A.L. in this case, to establish a reasonable explanation for not attending an IE.2
12Section 55(1)2. of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has notified him that it requires an examination under s.44, but the insured person has not complied with that section.
A.L.’s Failure to attend scheduled IEs
13By way of an affidavit sworn by Cecilia Ledzinsky dated August 10, 2017, the Personal submits that A.L. failed to attend nine IEs that were required in respect of his claims on the following dates:
Date
IE type
Date of Notice
December 10, 2015
FAE3
November 19, 2015
December 16, 2015
General
November 19, 2015
January 7, 2016
FAE
December 29, 2015
February 3, 2016
Medical
December 29, 2015
February 4, 2016
FAE
January 13, 2016
February 29, 2016
psychological
February 11, 2016
April 12, 2016
psychological
March 24, 2016
April 18, 2016
medical
March 24, 2016
April 23, 2016
unspecified in the affidavit
April 6, 2016
April 30, 2016
unspecified in the affidavit
April 6, 2016
14With one exception, set out below, A.L. does not contest the Personal’s account of his failure to attend the scheduled IEs.
15The Personal asserts that A.L. offered no explanation for the missed IEs, and again with one exception, this is also uncontested by A.L. The Personal also asserts that IE notices were sent to both A.L. and his legal counsel, as requested.
16A.L. makes the following claims to rebut the Personal’s claims:
i. He attempted to attend an IE on April 30, 2017 and found the examination venue closed.
ii. He didn’t attend IEs scheduled to determine his entitlement to income replacement benefits (IRBs) because they were scheduled for dates after he withdrew his claim for IRBs.
17I find that A.L. failed to attend scheduled IEs without an explanation contrary to s.44(9)2.iii. of the Schedule for the following reason:
i. A.L. provides no evidence of his attempt to attend the IE on April 30, 2016. The Personal’s evidence includes a letter dated May 4, 2016 in which it cited A.L.’s failure to attend this IE; the letter is predicated on the assessor’s report that A.L. did not show up, and I find it not credible that the assessor would have reported a “no-show” if the examination facility had been closed.
ii. The arguments about not attending IEs scheduled to determine his entitlement to income replacement benefits (IRBs) is moot. None of the IEs in evidence before me were scheduled for that purpose and he failed to attend them all.
iii. No explanation is given, except as noted above, for the failure to attend the IEs at issue in this hearing.
Did the Personal provide A.L. with adequate notice of its IE requests?
18Section 44(5) of the Schedule sets out the notice required when requiring IEs, which includes the medical and other reasons for the examination.
19A plain reading of s.55 of the Schedule indicates that an insurer cannot raise a bar to a claimant’s appeal for non-attendance at an IE unless the notices of examination that it provided comply with the Schedule.4
20A.L. raised arguments with respect to the compliance of the Personal’s IE notices with the Schedule, arguing in effect that deficient notices prevent the Personal from raising his attendance as a bar to his appeal. A.L. argues specifically that the medical reasons given in the notices were inadequate.
21The Personal asserts that it gave adequate notice and explanation of these IEs to A.L., and includes its notice letters in its evidence.
22I reviewed Aviva’s IE notice letters and OCF-25s5 to A.L. against the following criteria:
i. Required content: all particulars required prescribed by s.44(5) must be provided in the notice.
ii. Clarity: the language in the notice must be straightforward and clear, explicit, unambiguous and understandable to an unsophisticated person; for example, it should be free of unexplained acronyms.
iii. “Medical and any other reasons” should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires in order to determine the claim.
iv. The notice must clearly state the claimant’s obligation to attend and consequences of non-compliance (at minimum on OCF-25s).
v. The notice must include contact information for the applicant to respond, seek explanation and ask questions.
vi. The information must be overall sufficient for the recipient to decide if he or she wants to submit to the requested IE.
vii. A standard of perfection is not to be expected; the overall sufficiency of notice is what should be assessed.
23I reviewed the Personal’s IE notices to A.L. and found that taken together, the covering letter and OCF-25 forms met all of the above-noted criteria. Specifically, I found it important that:
i. It was clear what medical issues the IEs were intended to determine, including the alleged existence of pre-existing medical conditions and psychological injuries that would remove A.L. from the Minor Injury Guideline (MIG) and the cap it imposes on medical benefits.
ii. Contrary to A.L.’s position, I find that the medical reasons set out by the Personal were sufficient to meet its obligations under s.44(5). A.L. provides no description of what he would have considered adequate medical reasons under the circumstances of this case. Medical reasons in all of the notices submitted in evidence were clearly tied to specific benefits.
iii. The cancellation process and consequences for no-shows are clearly marked. The notices set out the notice requirements, to assist the reader to determine whether any required information was missing.
iv. A.L.’s right to appeal and contact information for communicating concerns or questions is clearly set out.
24Based on my review of the Personal’s notices of IE, I find that the Personal provided adequate and compliant notice to A.L.
25I further find that A.L.’s objections to the Personal’s notices are unpersuasive because his submissions indicate that, with advice from legal counsel, he acknowledged the Personal’s IE notices and had his legal representatives respond to them with rescheduling requests and conditions.
26As the result of my findings, I find A.L.’s submissions on the adequacy or compliance of the Personal’s notices to be without any merit. There is no justification on this basis for dismissing the Personal’s motion.
The Tribunal’s discretion with respect to non-compliance with s.44
27Under s.55(2) of the Schedule, the Tribunal may permit an insured person to proceed with an appeal despite his or her failure to comply with s.44.
28Section 55(3) of the Schedule permits the Tribunal to impose terms and conditions on a permission granted under s.55(2).
29A.L. did not ask the Tribunal to exercise this discretion in his submissions.
30I decided to consider s.55(2),(3) and to deny A.L. permission to proceed with his appeal because:
i. I find that the evidence that A.L. simply failed to attend IEs without reasonable explanation is too strong to make a case that barring his appeal would be a disproportionate response to his conduct.
ii. While I don’t purport to establish a suggested “time limit” or number of missed IEs against which to weigh the merits of allowing appeals to proceed, I find in this case that nine missed IEs over five months of scheduling and rescheduling by the Personal, without credible explanations and while retaining legal counsel suggests a wilful refusal to cooperate with the IE process established by s.44.
iii. The Personal’s right to conduct IEs to assess A.L.’s entitlements to accident benefits should be respected and enforced. There is no suggestion from A.L. that the Personal’s IEs requests were excessive, unreasonable or unnecessary.
Recovery of the Personal’s Cancellation and other Costs
31The Personal asserts that it incurred “at least $4,840.45” in costs for cancelled IEs, including failure to provide notice of cancellation.6 It includes copies of payment confirmation letters to service providers for missed IEs in its evidence: the costs were clearly incurred.
32The Schedule does not include a provision that specifically addresses reimbursement of fees paid by an insurer for an IE where the insured person fails to attend.
33The Personal submits that the Professional Services Guideline, September 2014 states that insurers are not liable to pay for the costs of appointments missed or cancelled by insured persons. It goes on to suggest that this provides a basis on which the Tribunal should order the payment of these costs by A.L.
34I have not been provided with any authority or provision of the Schedule or Insurance Act confirming that I have jurisdiction to order payment of fees for missed IEs. I believe that such authority does not exist. Accordingly, I decline to order reimbursement to the Personal.
Costs of Proceeding
35Rule 19.17 permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”.
36The Personal requested costs in this matter. It argues that because A.L. missed so many IEs, despite its warnings that this could lead to a bar on any appeal, his whole appeal is frivolous and vexatious.
37I deny the Personal’s cost request because:
i. I am not convinced that attempting an appeal in this case meets the level of conduct contemplated by Rule 19.1 for the cost remedy, especially as the behaviour complained of did not occur after the proceeding commenced.
ii. The statute bar to his appeal strikes me as an adequate consequence for A.L.’s conduct with respect to IEs in this matter.
CONCLUSIONS
38A.L.’s appeal is barred as the result of his failure to attend IEs.
39The Personal’s request to recover costs of IE cancellation or no-show fees is dismissed for lack of jurisdiction.
40The Personal’s requests for costs under Rule 19.1 is denied.
Released: February 1, 2019
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 92, affirmed in State Farm Mutual Automobile Insurance Company v S.R. [2013] ONSC 2086
- “FAE” means “functional abilities evaluation”
- Augustin and Unifund Assurance Company, [2013] FSCO 12-000452, submitted by A.L.
- OCF-25s are the official forms attached to notice letters setting out the details of IE appointments, including reasons for the examination.
- Affidavit of Cecilia Ledzinsky, sworn August 10, 2017.
- All references to a “Rule” are made to the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016)