Release date: 09/13/2021
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:
Nancy Tuccitto
Applicant
and
BelairDirect
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
Mitchell J. Barber, Counsel
Fawad Siddiqui, Counsel
For the Respondent:
O.Itse Ezomo, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Nancy Tuccitto (“applicant”) was involved in an automobile accident on February 15, 2017 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (''Schedule'').
2BelairDirect (“respondent”) initially paid and then denied the applicant’s claim for income replacement benefits (“IRB”). The respondent also denied certain medical and rehabilitation benefits on the basis that her injuries fall within the $3,500.00 limit of the Minor Injury Guideline (“MIG”). The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
3The respondent requested a preliminary issue hearing to determine whether the applicant is precluded from proceeding with her application because she failed to attend s. 44 insurer’s examinations (“IEs”).
PRELIMINARY ISSUE TO BE DECIDED
4The preliminary issue to be decided is:
i. Pursuant to s. 55 of the Schedule, is the applicant barred from proceeding with her application due to her non-attendance at IEs required under s. 44?
RESULT
5The applicant is barred from proceeding with her application because she failed to attend s. 44 IEs.
LAW
6Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
7Section 44(3)(a) provides that s. 44(1) does not apply to a benefit payable in accordance with the Minor Injury Guideline.
8Section 38(10) requires the insurer to notify the insured person under s. 38(8) if the insurer believes that the Minor Injury Guideline applies to the insured person’s impairment and the insurer may require the insured person to undergo an examination under s. 44.
9Section 44(9)3 provides that if the examination relates to an application for attendant care benefits, the report of the examination must include an assessment of attendant care needs prepared in accordance with s. 42.
10The requirements for the notice of examination are set out in s. 44(5) of the Schedule:
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.
11Section 37(7) of the Schedule provides that if an insured person fails to attend an examination required by an insurer under s. 44, the insurer may determine that the insured person is no longer entitled to the specified benefit and may refuse to pay the specified benefit for the period relating to the period during which the insured person failed to comply.
12Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
13Section 55(2) of the Schedule provides that the Tribunal may permit an insured person to apply despite paragraph 2 or 3 of s. 55(1). Section 55(3) provides that the Tribunal may impose terms and conditions on a permission granted under s. 55(2).
14The onus is on the insured person to put forward a reasonable explanation for non-attendance at an IE.2
Respondent’s position
15The respondent requests an Order dismissing the application pursuant to s. 55 (1)(2) of the Schedule because the applicant has not complied with notice given six times that it requires her to attend IEs. The applicant’s only reason for non-attendance is that s. 44 of the Schedule does not permit an IE to determine the applicability of the MIG.
16The respondent submits that the applicant’s position is legally incorrect because:
a) This reason cannot be said to cover the applicant’s refusal to attend the IEs to address her IRB entitlement because the MIG has no relevance to IRB.
b) The applicant’s legal argument that there is no provision in the Schedule that permits an IE under s. 44 to determine applicability of the MIG is incorrect.
c) Section 44(1) permits an insurer to require an insured person to attend an IE to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made.
d) Section 38(10) of the Schedule provides that an insurer may require the insured to attend an IE where an insurer believes that the MIG applies to an insured’s impairment.
e) Section 44(3)(a) of the Schedule has no application to this case as the Tribunal has found previously that the intention of this subsection is to preclude an insurer from forcing an insured into an IE on the original block of approved treatment or for an IE on any treatment that falls within the MIG. Respondent relies on Y.H.C. v. Co-operators General Insurance Company3 and J.A. v. Intact Insurance Company4. Here the respondent approved the applicant’s initial block of MIG treatment and did not request any IEs for any MIG treatment.
f) This argument has been made before by applicant’s counsel on several occasions and it has been rejected by the Tribunal. The applicant’s misinterpretation of the Schedule has resulted in a strategy of unreasonably refusing to attend properly scheduled IEs.
g) The respondent’s denials were proper, in accordance with the requirements of the Schedule and there is no evidence that the respondent did not respond to the applicant’s claims within the relevant time period, or that it’s medical reasons were invalid or did not provide notice that it believed the MIG applied.
h) The applicant’s application should be barred for failure to attend IEs in accordance with the Tribunal’s previous decisions5 or alternatively stayed until the applicant attends the IEs.6 Here because it is now more than three years since the accident, the respondent would be prejudiced from obtaining the necessary assessments as any current assessments would not likely yield any credible evidence regarding the applicant’s alleged impairments for the time frame in which the benefits were claimed.
i) It would be a breach of procedural fairness if the applicant were allowed to proceed with her application in these circumstances.
Applicant’s position
17The applicant submits that she is in substantial agreement with the facts in the respondent’s submissions.
18However, the applicant submits that she did not unreasonably refuse to participate in the IEs and provided explanations why she would not be attending. The applicant determined that she was not legally required to attend the IEs and therefore she has not unreasonably refused to participate in the IEs because:
a) The IEs are beyond the scope of examinations permitted by the Schedule. An insurer cannot subject an insured to a s. 44 IE for the purposes of determining the applicability of the MIG because there is no provision in the Schedule which permits an IE to directly address the applicability of the MIG.
b) Section 44 of the Schedule cannot be used to address the applicability of the MIG, which is specifically not referenced or permitted under s. 44.
c) An IE can only address entitlement to a benefit. The MIG is not a benefit. The applicant has not and does not object to submitting to an IE which addresses the reasonableness and necessity of a treatment plan. In neither s. 38(8) or 38(9) is a direction connection made to s. 44, nor is there an allowance for consideration of the MIG in the course of conducting an IE.
d) It is up to an insured to prove they fall outside the MIG. It would be absurd to permit the insurer to reverse this onus by subjecting the insured to an IE to determine if the MIG is applicable or not, especially given that it is not specifically permitted for in the Schedule. An IE can only address entitlement to a benefit. The MIG is not a benefit and thus is outside the scope of inquiry permitted by s. 44.
e) The applicant relies on ss. 38(8), (9) and (10), 44, and 55(1) of the Schedule and the statements of Gordon, R.S.J. in Scarlett v. Belair Insurance that “There is no provision in the SABS which expressly incorporates by reference the entirety of the MIG…The contents of the MIG are not required to understand or interpret the subsection”7.
f) The applicant has not and does not object to submitting to IEs which address the reasonableness and necessity of a treatment plan. The applicant objects to s. 44 being used to address the applicability of the MIG which is specifically not referenced or permitted under s. 44. The applicant submits she is willing to participate in any reasonable and necessary IEs provided that the examiners will comment on whether the insured is or continues to be entitled to a benefit in dispute.8
g) The applicant also submits that the respondent’s correspondence dated July 31, 2017 fails to satisfy the minimum notice requirements where the respondent believes that the MIG might apply because it is wholly unclear as to the medical reasoning and does not fulfil the guidelines set out in case law9.
h) The applicant denies prejudice to the respondent and submits that great prejudice would result if the application is dismissed.
ANALYSIS
Is the Applicant’s Application Barred Because She Did Not Attend s. 44 IEs?
19The facts are not in dispute. On August 15, September 28 and December 6, 2017 the applicant failed to attend IEs for the disputed physiotherapy treatment plan dated July 12, 2017 of $1,636.00. She also failed to attend IEs to determine continued entitlement to IRB on August 1, August 15, September 28, 2017 and December 6, 2017. On February 28, 2018 the respondent suspended the applicant’s IRB due to her failure to attend the IEs.
20With respect to the applicant’s legal arguments regarding s. 44 and the MIG, I find that the applicant’s interpretation of the Schedule is not correct. This incorrect legal position resulted in the applicant unreasonably refusing to attend the respondent’s properly scheduled IEs.
21I find that the applicant and her counsel, based on their interpretation of the Schedule, incorrectly took the position that the applicant was not legally obligated to attend the IEs.
22The applicant argues that the issue to be decided in this hearing is whether or not respondent can subject the applicant to a s. 44 IE for the purposes of determining the applicability of the MIG, in light of the absence of any explicit reference in the Schedule permitting same. The applicant relies on ss. 38(8), (9) and 10, 44, and 55(1) of the Schedule. Further, the applicant argues that “Section 38(10) of the SABS states that if a benefit is denied or if the insurer believes the MIG applies, the insurer “may notify the insured” that is requires an exam under s. 44. The reach of this provision stops there; it does not state that an IE can be conducted to specifically address the applicability of the MIG. Section 44(1) subsequently states that an IE may be required to help determine if the insured “is or continues to be entitled to a benefit”. The applicant also argues that “The MIG is not a benefit. Should an OCF-18 be denied because the insurer believes the MIG applies, the insurer is permitted to conduct an [IE] to address that specific OCF-18, not the applicability of the MIG.” The applicant also argues that using an IE to determine the MIG would amount to reversing the onus of proof. I disagree with the applicant’s arguments, except for the argument that the MIG itself is not a benefit. The IRB and treatment plan in dispute in the applicant’s application are the benefits.
23The applicant’s arguments have been made to the Tribunal before and rejected10.I adopt the interpretation of these sections of the Schedule in these decisions.
24The applicant’s submission that she should not be required to attend the IEs because they violate the applicant’s privacy is not persuasive. Section 44 provides that the IEs shall be “…no more often than is reasonably necessary”. In this particular case, I find that the respondent requesting IEs for IRB and an IE for the disputed treatment plan does not offend the “no more than is reasonably necessary” requirement. The applicant was required to attend the IEs absent reasonable explanation. The respondent has now been deprived of examining the applicant for more than three years and the passage of time prejudices the respondent who will never be able to assess the applicant at the time it was entitled to. This is especially true for the IRB IE given that there is a different IRB entitlement test for pre- and post-104-week post-accident. For this reason, the applicant’s suggestion in her submissions for this hearing that she is willing to participate in any reasonable and necessary IEs provided that the examiners will comment on whether the insured is or continues to be entitled to a benefit in dispute is not of assistance. Given that more than three years have passed since the applicant’s refusal to attend IEs, the applicant’s suggestion now is too little too late.
25I find that based on the particular facts of this case, the IEs requested by the insurer are not an intrusion into the privacy of the applicant as urged by the applicant. The situation here is distinguishable from that in Kitchenham11 where the comments about privacy were made by Heeney, J. in the context of a motion seeking an Order of the court for production of an IE conducted in another court action. None of the cases cited by the applicant operate to extinguish the respondent’s rights to IEs in the circumstances of this case.
26Although the main thrust of the applicant’s argument is that nowhere under s. 38(8) (or other sections) is it permissible for an insurer to compel an insured to participate in an IE specifically for the purposes of determining applicability of the MIG, I find that the respondent’s notices of IEs for the disputed treatment plan and IRB set out medical and other reasons, including the MIG and meet the Schedule’s requirements.
27The applicant submits that any notices of IEs or related correspondence sent by the respondent prior to September 14, 2017 were not copied to her counsel and therefore are improper. However, the respondent has submitted evidence that establishes the notices and related correspondence were sent to the applicant’s counsel after the respondent was advised of the retainer. I find the notices and related correspondence were properly addressed.
28The applicant also argues that the July 31, 2017 notice is “wholly unclear as to the medical reasoning” and does not comply with the requirements in previous decisions.12 Although the decisions cited by the applicant in support of this proposition are not binding on me, I have reviewed this notice and do not find it to be unclear and, to the contrary, find that it substantially meets the Schedule’s requirements. This notice also provides a clear warning that if the applicant should fail or refuse to attend or participate in the IE, a determination may be made that she is not entitled to receive the requested goods and services. Further, I find that this notice complies with s. 38(9) because it advises the applicant that, in the respondent’s view, her injuries fall within the MIG.
29I find that the respondents notices for the IEs comply with s. 38(10) which allows the respondent to notify the applicant that he is required to undergo s. 44 IEs. I agree with and adopt the conclusion reached by the Tribunal in 18-000813 v. Co-operators General Insurance Company13 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.” The applicant made the same argument here.
30I find that the applicant was required to attend the IEs for IRB and the treatment plan in dispute. Section 44 allows an insurer to require an insured to be examined for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary. Nothing in s. 44 precludes the respondent from addressing the MIG in an IE. I agree with and adopt the conclusion of the Tribunal in 18-000813 v. Co-operators General Insurance Company14 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…or for an IE on any treatment that falls within the MIG.” Further, in this particular case, the notices for the IRB IE state that the reason for the IE is to determine the applicant’s ongoing entitlement to IRB. The notices for the disputed treatment plan IE states that the reason is to determine whether the proposed treatment is reasonable and necessary and the applicability of the MIG. The IEs were not scheduled specifically for the purposes of determining the applicability of the MIG.
31I find that s. 44(3) of the Schedule has no application to this case. In 16-004092 v. Certas Direct Insurance15 the Tribunal rejected the argument that the insurer could not require an insured person to attend a s. 44 IE to determine the applicability of the MIG because the insurer maintained that insured’s injuries fell within the MIG. I agree with and adopt the conclusion in that case that “The Schedule states that an insurer is not able to require a claimant to attend an IE for a benefit payable in accordance with the MIG. The Applicant asserts that his injuries do not fall under the MIG due to his psychological impairment. As such, s. 44(3) does not advance or support the applicant’s position that the insurer is not entitled to request an assessment.” Here, the applicant also takes the position that her injuries do not fall within the MIG according to the Tribunal’s case conference Order and the disputed treatment plan exceeds $3,500.00.
32I find unpersuasive the applicant’s argument that the MIG can be determined by a paper review and an in-person IE is not necessary. I find that this is not a reasonable excuse for failing to attend a properly requested and scheduled s. 44 IE.16
33I also find unpersuasive the applicant’s argument that using an IE to determine the MIG would amount to reversing the onus of proof. Generally, the burden of proof in an application is on the applicant. The burden of proof does not shift back and forth depending on whether an insurer exercises its rights pursuant to s. 44(1) of the Schedule.
34I find that the applicant is barred from proceeding with her application because she failed to attend s. 44 IEs without reasonable explanation.
35Although s. 55(2) of the Schedule permits the Tribunal to allow an insured to apply despite being barred and s. 55(3) provides that the Tribunal may impose terms and conditions on any permission granted, I decline to exercise my discretion under these sections. The applicant has not put forward any reasonable explanation for her non-attendance at the IEs. Almost all of the applicant’s legal arguments have been rejected by the Tribunal previously as set out in the decisions referred to above and were unlikely to succeed.
ORDER
36The applicant is barred from proceeding with her application pursuant to s. 55 of the Schedule because she failed to attend IEs.
Released: September 13, 2021
Avril A. Farlam, Vice Chair
Footnotes
- O.Reg. 34/10.
- Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 29, affirmed in State Farm Mutual Automobile Insurance Company v. S.R., ONSC 2086 (Div. Ct.).
- Y.H.C. v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT), para. 12 to 18.
- J.A. v. Intact Insurance Company, 2020 CanLII 47480 (ONLAT).
- S.S. v. Aviva General Insurance Company, 2017 CanLII 33689 (ONLAT); I.K. v. Primmum Insurance Company, 2017 CanLII 59511 (ONLAT), paras. 2 and 64 and Reconsideration Decision, 2018 CanLII 13162 (ONLAT) at paras. 1,2,3 and 10.
- J.D.S. v. Aviva General Insurance, 2019 CanLII 43896 (ONLAT), para. 31.
- Scarlett v. Belair Insurance, 2015 ONSC 3635, paras 24,31 and 36 (Div. Crt.)
- Applicant’s submissions dated December 31, 2020, para 9.
- S.S. v. Aviva Insurance Company, 2017 CanLII 33689, para 15 (ONLAT) citing Kadian Augustin v. Unifund Insurance Company, FSCO A12-000452
- See for example: 18-000813 v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT); Y.H.C. v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT), para. 12 to 18; J.A. v. Intact Insurance Company, 2020 CanLII 47480 (ONLAT).
- Kitchenham v. Axa Insurance, 2005 CanLII 16620 (ONSC).
- Kadian Augustin v. Unifund Insurance Company, FSCO A12-000452; S.S. v. Aviva Insurance Company, 2017 CanLII 33689 (ONLAT).
- 18-000813 v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT), para. 14.
- 18-000813 v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT), para. 16.
- 16-004092 v. Certas Direct Insurance, 2017 CanLII 70683 (ONLAT) para 20.
- 18-000813 v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT) para. 17.