A. J. v. Security National Insurance Company, 2019 CanLII 58169

Tribunal File Number: 18-007658/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:

A. J.

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Imtiaz Hosein, Counsel

For the Respondent: Cody A. Moskovitz, Counsel

HEARD: In writing on February 11, 2019

OVERVIEW

1The applicant was injured in an automobile accident on May 27, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2The respondent raised a preliminary issue in response to the application to the Tribunal which is the subject of this hearing.

ISSUES

3The preliminary issue in dispute is:

1. Is the applicant barred from proceeding with this claim for non-earner benefits for failure to submit to an insurer’s examination under section 44 of the Schedule?

RESULT

4The applicant may proceed with this application.

5Neither party is entitled to costs as no party acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding.

BACKGROUND

6The applicant was struck by a vehicle while walking in a suburban plaza. Following the accident, the applicant submitted a Disability Certificate (OCF-3) to the respondent which was dated June 13, 2016. The OCF-3 stated the applicant suffered from a complete inability to carry on a normal life and estimated the duration of the disability as more than 12 weeks. The OCF-3 also noted the applicant was involved in a previous accident on January 30, 2015.

7About two months later, on September 16, 2016, the respondent wrote to the applicant and requested the applicant submit a second disability certificate on or before October 11, 2016. The letter stated the OCF-3 was required in order to determine ongoing entitlement to NEBs.

8The applicant did not reply to the September 16, 2016 letter and the respondent wrote to the applicant again on November 4, 2016 (“the notice”). The notice advised that the applicant’s entitlement to non-earner benefits (NEBs) was suspended because the applicant did not submit an OCF-3 as requested on September 16, 2016. The notice also advised the applicant that three in-person insurer’s examinations (IEs) were scheduled to help determine continuing eligibility for NEBs.

9On November 17, 2016, the applicant wrote to the respondent (“the reply”) and advised that the notice was not compliant with the Schedule because it did not provide medical and any other reasons for the assessments. The reply also advised that an updated OCF-3 was forthcoming and that the proposed IEs were not reasonable and necessary to make a determination of entitlement to NEBs until the respondent received the updated OCF-3. An updated OCF-3 was provided on November 28, 2016.

ANALYSIS

10To-date, the parties differ on whether the applicant is compliant with section 44 and whether this application can proceed. The respondent submits that the IEs are reasonably necessary and, pursuant to section 55, the applicant is not entitled to dispute the respondent’s refusal to pay NEBs because the applicant did not attend three properly scheduled IEs. The applicant submits that the IEs are not reasonably necessary and the notice is not proper because it does not provide the medical and any other reasons why the IEs are required.

IS THE IE REQUEST REASONABLY NECESSARY?

11Section 44 is the authority for the respondent to request the applicant attend an examination with a regulated health professional in order to assist in determining whether the applicant is or continues to be entitled to a benefit. The respondent may not make this request more often than is reasonably necessary.

12The respondent submits the applicant’s original OCF-3 notes a prior disability which caused the respondent to question whether the applicant’s current disability was as a result of the accident. The respondent submits this discrepancy, coupled with the applicant’s untimely delivery of the updated OCF-3, make the IEs reasonably necessary.

13The applicant submits the IEs are not reasonably necessary because the updated OCF-3 was provided. The document confirmed the applicant continues to meet the test for NEBs.

14I find the request for IEs has not been made more than reasonably necessary because of the applicant’s untimely delivery of the updated OCF-3 and, more importantly, because the respondent has never conducted an IE with the applicant. The Schedule contemplates that insurers may wish to have an examination conducted by a regulated health professional of their choosing and provides the rules which govern the process. The respondent is exercising this right, for the first time in the applicant’s claim, in order to determine ongoing entitlement to NEBs.

15At the time the request was made, the applicant’s original OCF-3 confirmed the applicant met the test to qualify for NEBs. However, the OCF-3 was from an assessment which took place more than 5 months prior to the applicant’s potential entitlement to the benefit. I find it reasonable for the respondent to request an updated OCF-3 considering the length of time between the assessment for the OCF-3 and the beginning of the applicant’s entitlement to NEBs. Likewise, the respondent’s request for IEs in the absence of the applicant’s production of an updated OCF-3 is reasonable because the respondent ought to have an opportunity to evaluate if the applicant is entitled to or continues to be entitled to NEBs.

THE NOTICE

16Section 55(1)(2) provides that an applicant may not commence an application for dispute resolution if the applicant has failed to attend a section 44 insurer’s examination that complies with the requirements of the Schedule, including notice. I must first determine if the notice is compliant with the Schedule. If the notice is compliant, I must then determine if the applicant failed to attend the IE’s.

17The Schedule and procedural fairness provide the respondent with the right to conduct an IE, however this right is not absolute. In order to exercise this right, the respondent must follow certain rules outlined in section 44. Specific to this matter is section 44(5)(a), which states the respondent’s IE notice must include the medical and any other reasons for the examination.

18The parties did not dispute whether the notice had all the relevant logistical information to be compliant rather, whether the notice had medical and any other reasons to warrant IEs.

19The respondent submits the reason for the IEs is because, according to the respondent, the medical documentation received created more questions than answers and raised a causation issue. The respondent further submits the IEs are required because the applicant did not provide an updated OCF-3 and because the respondent didn’t have any evidence to support the applicant’s entitlement to NEBs. The respondent considers these to be medical reasons.

20The applicant disagrees and submits the respondent did not provide medical reasons for the IEs.

What did the notice say?

21The relevant part of the notice states;

“Further to our correspondence of September 16, 2016, we advise you of the requirement to have a new Disability Certificate (OCF-3) completed by your health practitioner and submitted by October 11, 2016. As a result of your failure to submit an OCF-3, we have suspended the following benefit:

Non-Earner Benefit

Payment of your benefit has been suspended effective October 11, 2016. Please be advised that no benefit is payable for the period after the date specified and before the day the insurer received the completed OCF-3.

In order to assist us with a determination of your continuing eligibility for the above listed benefit, we have arranged assessments…”

Did the notice include medical reasons?

22Upon review of the submissions and evidence, I find the respondent’s reasons in the notice are not medical but rather, procedural reasons to request the IEs. The notice fails to mention anything about the applicant’s medical status or condition, or anything of a medical nature.

23The respondent’s submission that there was confusion over the cause of the applicant’s injuries and the extent of the injuries which were as a result of the accident is a relevant medical reason for an IE. However, the notice fails to mention this concern. Instead, the respondent seeks an IE to see if the applicant continues to be eligible for NEBs, but does not say why the respondent questions the applicant’s ongoing entitlement.

24I agree with the respondent that the OCF-3 is a medical document. However I find the lack of an OCF-3 is not a medical reason but a procedural one. The failure to produce an OCF-3 is contemplated by the Schedule and is addressed in section 37. The remedy is provided in section 37(3), which allows the respondent to discontinue paying the benefit until a new OCF-3 is provided.

25Lastly, the respondent’s submission that, at the time of the request for an IE, there was no evidence to support the applicant’s entitlement to receive NEBs fails to consider the applicant provided an OCF-3 at the time the initial claim was submitted. The OCF-3 supported the applicant’s entitlement to NEBs, and estimated the disability would last more than 12 weeks. Although the initial OCF-3 was about 3 months old at the time the respondent initially requested an updated one, the information in the initial OCF-3 was still relevant and satisfactory to initiate a claim for NEBs.

NEXT STEPS

26The notice is not compliant with the Schedule because it did not provide medical reasons for the IEs. For this reason, I find that the applicant is not required to attend the IEs until the deficiency in the notice is cured.

27The respondent requested, in the event the notice is deemed insufficient, an opportunity to serve the applicant with an updated notice and conduct medical assessments of the applicant before entitlement to NEBs can be adjudicated. The applicant did not address this position.

28Upon review of the Schedule, I see no reason why such an Order is required. The Schedule does not restrict the respondent from serving the applicant with a compliant notice during the adjudicative process. Similarly, the respondent has not provided any alternative authority or reasons why I should make such an Order.

29I find the applicant is not barred from proceeding with this application because the applicant has not failed to attend a properly scheduled IE. The appeal will proceed.

30I will Order the parties to attend a new case conference to address the substantive issues in dispute. At the resumed case conference the respondent may request a hearing date that would accommodate IE scheduling, if required.

COSTS

31The applicant seeks an Order or guidance with respect to a claim for costs against the respondent. The respondent did not address this position.

32I decline to award costs in this matter as I have no evidence before me to suggest either party acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding

ORDER

33The applicant may proceed with the appeal.

34The Tribunal will schedule a case conference as soon as reasonably possible to address the substantive issues in dispute.