Tribunal File Number: 19-006032/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits
Between:
Nadia Shaikh
Applicant
and
TD Insurance Meloche Monnex
Respondent
REASONS FOR DECISION AND ORDER
VICE CHAIR: Avril A. Farlam
APPEARANCES:
For the Applicant: Melissa Chan, Counsel
For the Respondent: Mahroze A. Khan, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant, Nadia Shaikh ("applicant"), was in an automobile accident on September 28, 2016 and sought non-earner benefits ("NEB") under the Statutory Accident Benefits Schedule - Effective September 1, 20101 ("Schedule"). The respondent TD Meloche Monnex ("respondent") denied the benefits. The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of this dispute on May 16, 2019.
2The respondent requested a preliminary issue hearing to determine whether the applicant is precluded from proceeding with her application because she failed to attend a s. 44 insurer's examination ("IE") and sought costs.
PRELIMINARY ISSUE TO BE DECIDED
3The issue before me in this written hearing is:
Pursuant to s. 55(1) of the Schedule, is the applicant precluded from proceeding with her application to the Tribunal to determine her entitlement to NEB due to her failure to attend a physiatry insurer's examination ("IE") requested by the respondent under section 44 of the Schedule?
SUBSTANTIVE ISSUES
4The substantive issues in dispute were identified and agreed to as follows:
i. Is the applicant entitled to receive NEB in the amount of $185.00 per week for the period of May 19, 2017 to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
5I find the applicant is barred from proceeding with her application because she failed to attend the s. 44 examination. The application is dismissed. No costs are awarded to the respondent.
FACTS
6In 2016, following the accident, the applicant sought NEB from the respondent based on an OCF-3 disability certificate dated November 2016.
7The applicant attended a psychological IE on March 20, 2017 at the IE assessment Centre ("Viewpoint"). On June 2, 2017, the respondent sent the applicant a copy of the resulting report and provided the following correspondence:
At this point, the Insurer-requested examination is only partially complete…Further to our conversation dated May 18 & June 2, 2017 with Campisi LLP Personal Injury Lawyers, TD Insurance has agreed to continue payment of your…NEB pending receipt of the Occupational Therapy (In-Home) Insurer Examination of Report. Once received, we will determine your ongoing eligibility to receive this benefit….Notice regarding this assessment will follow under separate cover….At this time, from a physical perspective, we have not received progress reports to determine your level of improvement. An in-home occupational therapy assessment is requested to properly determine the extent to which your injuries limit your capacity to perform your pre-accident activities of daily living….As per section 37(7) of the Statutory Accident Benefits Schedule, should you fail to attend this assessment, the non-benefit will be suspended until such time that you comply with the assessment.
This correspondence was copied to the applicant's lawyers.
8The occupational therapy IE was initially scheduled for June 30, 2017 but rescheduled to August 21, 2017 at the request of the applicant's lawyer.
9Notice was given to the applicant by letter dated July 28, 2017 which stated:
Further to our letter dated June 2, 2017, we require your attendance at an insurer's Examination to determine your ongoing entitlement to the Non-Earner Benefit. The initial Disability Certificate (OCF-3) completed by your Family Physician, Dr. Khalida Qazi, and dated November 20, 2016 indicated that the anticipated duration of disability was 9-12 weeks. It has now been 34 weeks since the completion of this Disability Certificate (OCF-3) and we have not received an updated OCF-3, as requested in our letter dated June 2, 2017….Your correspondence dated November 30, 2016 indicated that clinical notes and records from the Family Physician have been requested. However, we have not received any further medicals on file at this point to substantiate an ongoing claim to the Non-Earner Benefit beyond the anticipated duration of 9-12 weeks as initially reported by your Family Physician….Please contact Viewpoint…to reschedule or make alternative arrangements.
10The notice set out that the applicant's attendance was required, the name and profession of the assessor and the day, time and that the location would be at the home of the applicant. The notice also confirmed that an interpreter in the Urdu language would be provided and noted that "…if you do not comply with this notice regarding the requested examination, you will be unable to bring an application …before the Licence Appeal Tribunal without the permission of the…Tribunal. Further, if permission is granted, the Licence Appeal Tribunal may impose terms and conditions on that permission….your failure to attend this insurer's examination will affect your entitlement to the…NEB." This correspondence was copied to the applicant's lawyers. The respondent reminded the applicant's lawyer of the IE on August 11, 2017.
11The applicant did not attend the August 21, 2017 IE.
12By letter dated August 22, 2017, the respondent advised it was terminating the applicant's NEB effective September 7, 2017 until the applicant attended the IE or provided a reasonable explanation for not attending. The respondent also offered to have the IE rescheduled and asked the applicant to provide dates and times to Viewpoint in order to reschedule. This letter was copied to the applicant's lawyers. Despite telephone calls to the applicant's lawyers, the IE was not rescheduled.
Positions of the Parties
13The respondent submits that under s. 55 of the Schedule the applicant is precluded from proceeding with her application because she failed to attend the IE without reasonable explanation and that the respondent's notices met the requirements of the Schedule. The respondent also submits it is prejudiced by the delay because the respondent cannot now adequately investigate whether the applicant was entitled to NEB at the time claimed.
14In summary, the applicant submits that the respondent did not provide proper and sufficient notice of the IE in accordance with the requirements of the Schedule and that the IE was not reasonably necessary given that an OCF-3 was provided. The applicant submits that the respondent did not provide a clear and sufficient explanation for why her NEB was being denied, did not disclose its "medical reasons" and that the respondent was maintaining the position that her injuries are subject to the Minor Injury Guideline ("MIG").
15The applicant also submits the respondent did not give notice of the examinations as required by s. 44(5) of the Schedule before February 12, 2018 and when it did, the notice was inadequate. The applicant claims the notice did not specify which benefit listed in the disability certificate is in dispute, failed to provide the applicant with the sufficient reasons for the examinations, and did not explain to the applicant which benefit was in dispute, thereby rendering the applicant unable to determine whether the s. 44 examinations are "reasonably required to assist the insurer", pursuant to s. 33(1) of the Schedule.
16Lastly, the applicant submits that the respondent's failure to disclose the benefit in dispute in its s. 44 notice dated February 12, 2018 renders the applicant's non-attendance a "reasonable explanation" as envisioned in s. 33(8)(b) of the Schedule. Therefore, the respondent must pay all amounts withheld during the period of non-compliance as per s. 33(8)(b). The applicant further submits that she has demonstrated ongoing entitlement to NEB and that she is entitled to receive NEB between the period the disability certificate was submitted until a denial notice was sent to the applicant.
LAW AND ANALYSIS
17Section 12 of the Schedule requires an insurer to pay NEB to an insured person who does not qualify for an income replacement benefit and who suffers from "a complete inability to carry on a normal life" as a result of an impairment sustained in an accident. The impairment must arise within 104 weeks after the accident.
18Section 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.
19Section 38(10) requires the insurer to notify the insured person under s. 38(8) if the insurer believes that the MIG applies to the insured person's impairment and the insurer may require the insured person to undergo an examination under s. 44.
20The requirements for the notice of examination set out in s. 44(5) of the Schedule are:
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.
21Section 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.
22Section 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).
23The onus is on the insured person to put forward a reasonable explanation for non-attendance at an IE.2
Is the applicant barred by s. 55 from proceeding with her application because she did not attend the s. 44 IE?
24I find that the applicant is barred from proceeding with her application for failing to attend the IE because she has not put forward a reasonable explanation for her failure to attend. None of the applicant's numerous submissions constitute a reasonable explanation for her non-attendance.
25I find that the respondent satisfied its notice obligations under the Schedule as the notice for the IE gives the required medical and other reasons, meets all other requirements of s. 44(5) and s. 38(8) of the Schedule. The insurer met its obligation to ensure that the medical and other reasons were clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
26The applicant's argument that the explanations and notice of the IE were not clear and did not disclose sufficient reasons is not supported by the evidence. The respondent's correspondence to the applicant states that the IE is to determine the applicant's ongoing entitlement to NEB. It is sufficiently detailed and sets out that the IE is required because the initial disability certificate indicated that the anticipated duration of the disability was 9-12 weeks. The relevant correspondence and notice were also provided to applicant's lawyers who participated in a rescheduling of the original date for the IE. The applicant did not seek any clarification or further explanation about the IE at the time she was sent the respondent's correspondence as she did for a physiatry IE, which the respondent proposed and later withdrew.
27The applicant's argument that she has demonstrated entitlement to NEB and that she is entitled to NEB for some or all of the time since the accident is not relevant to the issue of whether the applicant is barred from proceeding with her application because she failed to attend the IEs. None of the applicant's s. 33 arguments constitute a reasonable explanation for the applicant's non-attendance at the IEs.
28I also find that the IE was reasonably necessary. The respondent was entitled to request an IE to assess the applicant's entitlement to NEB given that a disability certificate had been provided by the applicant's family physician dated November 20, 2016 which indicated that the anticipated duration of disability was 9-12 weeks as explained in the respondent's correspondence. I also find that the applicant was required to attend, absent reasonable explanation. The respondent has now been deprived of examining the applicant for more than two and one half years. At this point the passage of time prejudices the respondent who will never be able to assess the applicant at the time the NEB was claimed and within 104 weeks after the accident. One of the eligibility requirements for NEB in s. 12 is that the "complete inability to carry on a normal life" as a result of an impairment sustained in an accident must arise within 104 weeks after the accident.
29None of the cases cited by the applicant assist the applicant here given the factual finding I have made. Specifically, I find that the notices and explanatory correspondence sent to the applicant for the IE are legally sufficient and that the IE was reasonably necessary in the circumstances of this particular case. There is no lack of clarity, medical or other reasons or other information in the notices and explanatory correspondence sent to the applicant. There is no basis for the applicant's argument that there has been a lack of meaningful correspondence or notice that would run counter to the consumer protection objective of the Schedule.
30Although s. 55(2) 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 because the applicant has not put forward a reasonable explanation for her non-attendance at the IE. Even if the applicant were to attend the IE now, I find that this would prejudice the respondent given the passage of time. More than three and a half years have passed since the accident and some two and a half years since the applicant's non-attendance at the IE. The 104-week period since the accident has long since passed.
Costs
31Rule 19.1 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) ("Rules") provides that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs. The respondent requests costs based on Rule 19 on the basis that it has incurred cancellation costs due to the applicant's non-attendance despite attempts to accommodate the applicant.
32Costs may only be awarded on account of behaviour during the proceeding. The non-attendance and resulting cancellation costs were incurred prior to the proceeding. No costs are awarded.
ORDER
33The applicant is barred from proceeding with her application because she failed to attend the respondent's s. 44 IE. The application is dismissed. No costs are awarded to the respondent.
Released: May 14, 2020
_________________________
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., 2013 ONSC 2086 (Div. Ct.).