Licence Appeal Tribunal
Released Date: January 27, 2020
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:
[J.P.]
Applicant
and
Royal Sun Alliance Insurance (RSA)
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Paul Gosio
APPEARANCES:
For the Applicant:
[J.P.], Applicant
Peter Murray, Counsel
For the Respondent:
Pamela Brownlee, Counsel
HEARD: In Person and in Writing
June 3, 2019
OVERVIEW
1The respondent seeks a determination that the applicant is barred from proceeding with his application at the Licence Appeal Tribunal (“Tribunal”) on the basis that he failed to attend the insurer’s catastrophic impairment examinations.
2The applicant was injured in a motor vehicle accident on December 29, 2015. An Application for Determination of Catastrophic Impairment (“OCF-19”) dated April 6, 2018 was submitted to, and received by, the respondent on April 11, 2018.
3The respondent, by way of an Explanation of Benefits dated April 16, 2018, advised the applicant that it had determined that he did not sustain a catastrophic impairment as defined by the Statutory Accident Benefits Schedule – Effective after September 1, 2010, O. Reg. 34/10 (the “Schedule”) and requested that the applicant attend in-person s. 44 catastrophic impairment examinations. The respondent reiterated its position by way of an Explanation of Benefits dated June 1, 2018, and by letters dated October 29, 2018 and November 19, 2018.
4The applicant refused to attend the insurer’s catastrophic impairment examinations. He takes the position that he is not required to attend the assessments as the respondent failed to set out “the medical and any other reasons for its decision” as required under s. 45(3) Schedule, as well as “the medical and any other reasons for the examinations” as required under s. 44(5)(a) of the Schedule.
5The respondent argues it met the statutory requirements provided for under the s. 45(3) and s. 44(5)(a) of the Schedule, that the applicant failed to attend the insurer’s examinations and, that, pursuant to s. 55 of the Schedule, he should be barred from proceeding with his application.
RESULT
6Based on a totality of the evidence before me, I find that:
I. The respondent did not provide “the medical and any other reasons for its decision” as required under s.45(3) of the Schedule.
II. The respondent did not provide “the medical and any other reasons for the examinations” as required under s. 44(5)(a) of the Schedule.
III. The applicant is not precluded from proceeding with his application pursuant to s. 55(1)(2) of the Schedule.
ANALYSIS
7The following questions must be answered in order to address the preliminary issue at hand:
I. Did the respondent comply with the requirements as set out in s. 45(3)(b) and s. 44(5)(a) of the Schedule?
II. If it did not, what are the consequences of non-compliance with s. 45(3)(b) and s. 44(5)(a) of the Schedule?
III. If the respondent did comply with the requirements of the s. 45(3)(b) and/or 44(5)(a) of the Schedule, is the applicant barred, as per s. 55 of the Schedule, from proceeding with his application on the basis that he failed to attend the catastrophic impairment insurer’s examinations?
Did the respondent comply with the requirements as set out in s. 45(3)(b)?
8When an insurer receives an application for catastrophic determination, it has certain obligations. Relevant here is s. 45(3) of the Schedule, which states as follows:
Within 10 days after receiving an application under subsection (1) [i.e., an application for catastrophic determination] prepared and signed by the person who conducted the assessment or examination under subsection (2), the insurer shall give the insured person,
(b) a notice stating that the insurer has determined that the impairment is not a catastrophic impairment and specifying the medical and any other reasons for the insurer’s decision and, if the insurer requires an examination under section 44 relating to whether the impairment is a catastrophic impairment, so advising the insured person.
9The applicant takes the position that the respondent failed to set out the “medical and any other reasons” for its decision that the applicant is not catastrophically impaired as required under s. 45(3)(b) of the Schedule. The onus is on the respondent to establish on a balance of probabilities that it provided the medical and any other reasons for its decision.
10The respondent takes the position that its Explanation of Benefits dated April 16, 2018 satisfies its requirements under s. 45(3) of the Schedule. That Explanation of Benefits stated the following:
Based on medical documentation, we do not agree that you have sustained a catastrophic impairment as defined by the legislation. We require you to be assessed under section 44 of the Schedule to assist the insurer in determining if you have sustained a catastrophic impairment. A pre-screen paper review Insurer’s Examination will be scheduled to determine the assessment team required to conduct the in-person Insurer’s Examination. Notice of Assessments (“Notice”) will follow shortly.
11I find that this did not satisfy the requirements as set out in s. 45(3)(b) of the Schedule. In short, it did not provide the “medical and any other reasons” for the respondent’s decision that the applicant did not sustain a catastrophic impairment.
12As the Executive Chair stated in MB v. Aviva Insurance Canada, 2017 CanLii 87160 (ON LAT), an insurer satisfies its obligation to provide its “medical and any other reasons” by explaining its decision with reference to the insured’s medical condition and any other applicable reason. In this case, the respondent submits that the Explanation of Benefits provided the requisite “medical and any other reason” for its decision as it indicated that the respondent’s decision was “based on the medical documentation,” the applicant had submitted. I find that this does not adequately explain the insurer’s decision with reference to the applicant’s medical condition. Indeed, it offers no meaningful explanation why it has determined that the applicant was not catastrophically impaired – only the blanket conclusion that it had made that determination. Thus, I find that the insurer’s explanation fails to be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision and, as such, fails to achieve the consumer protection goal mandated by the Schedule.
Did the respondent comply with the requirements as set out in s. 44(5)(a)?
13The respondent’s request for catastrophic impairment assessments is governed by s. 44 of the Schedule. Section 44(5)(a) states:
If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
(a) The medical and other reasons for the examination;
14The applicant takes the position that the respondent failed to set out the “medical and other reasons for the examination” as required by s. 44(5)(a) of the Schedule. The onus is on the respondent to establish on a balance of probabilities that it provided the medical and other reasons for the examinations.
15The respondent submits that “the medical and other reasons for the examinations” is so obvious that it cannot be stated in any clearer way: based on the medical documents submitted by the applicant showing a WPI of 57%, responding CAT insurer’s examinations are required. The respondent submits that this position was articulated to the applicant through the Explanation of Benefits dated April 16, 2018 (as noted above), the Explanation of Benefits dated June 1, 2018, and its letters dated October 29, 2018 and November 19, 2018,
16The Explanation of Benefits dated June 1, 2018 attached Dr. Khaled’s Catastrophic Impairment File Review report and listed the various assessments that were deemed necessary in order to assess the issue of catastrophic impairment. The Explanation of Benefits also listed the documents that the insurer required before it could schedule the recommended assessments.
17The respondent’s letter dated October 29, 2018 indicated that it had determined that the applicant did not suffer a catastrophic impairment and requested that the applicant attend various in-person s. 44 catastrophic impairment insurer’s examinations.
18On November 19, 2018, the respondent wrote the applicant again and indicated that there is a live question as to whether the WPI impairment rating of 57% as put forward by his assessors was accurate. The respondent further indicated that its assessors may disagree with this rating and, therefore, its own assessments are required. Again, the respondent submits that these documents clearly illustrate “the medical and other reasons for the examinations”.
19I disagree. It is important to note that s. 44(5)(a) of the Schedule requires both the medical and other reason for its decision. The correspondences referred to by the respondent may articulate one reason for its decision, that being to verify the accuracy of the applicant’s assessors finding of a WPI of 57%. That is certainly clear. But simply expressing that an insurer wants an IE is not enough. While the respondent stated that its request was “based on the medical documents submitted,” that does not satisfy its requirement. For example, what in the “medical documentation” did it take issue with? Why? The applicant was given no sense why the application and medical documentation in supported of his application was inadequate. As such, the notice fails to be clear and sufficient enough to achieve the consumer protection goal mandated by the Schedule.
What are the consequences of non-compliance with section 45(3)(b) and 44(5)(a) of the Schedule?
20The respondent seeks an order precluding the applicant from proceeding with his application pursuant to s. 55(1)2 of the Schedule. Section 55(1)2 states:
Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act if any of the following circumstances exist:
- The insurer has provided the insured person with notice in accordance with the Regulation that it requires an examination under section 44, but the insured person has not complied with that section.
21Section 45 of the Schedule does not articulate consequences for failing to meet the requirements of s. 45(3). In addition to this, s. 55 of the Schedule does not refer to s. 45(3) at all.
22At any rate, for the reasons articulated above, I have found that the respondent did not comply with the requirements of s. 44(5)(a) of the Schedule. Thus, the applicant is not precluded from proceeding with his application.
CONCLUSION
23For the above reasons and based on a balance of probabilities, I find that:
I. The respondent did not provide “the medical and any other reasons for its decision” as required under s. 45(3) of the Schedule.
II. The respondent did not provide “the medical and any other reasons for the examinations” as required under s. 44(5)(a) of the Schedule.
III. The applicant is not precluded from proceeding with his Application to the Tribunal pursuant to s. 55(1)(2) of the Schedule.
Released: January 27, 2020
Paul Gosio
Adjudicator