Released Date: 07/03/2020
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:
Y.R.
Applicant
and
Coachman Insurance Company
Respondent
PRELIMINARY DECISION AND ORDER
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Adam Somogyi, Counsel
For the Respondent:
Michael Silver, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, Y.R., was involved in an automobile accident on May 30, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule'').
2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a determination of catastrophic impairment and for attendant care benefits.
3In response, the respondent raised a preliminary issue with the allegation that the applicant did not attend an insurer examination (I.E.).
4Following a resumption of the case conference, the matter was set down for a hearing to address the preliminary issue.
PRELIMINARY ISSUE:
5The preliminary issue in dispute is:
i. Pursuant to section 55(1)2 of the Schedule, is the applicant barred from proceeding with her application for attendant care benefits because the applicant did not attend an I.E. pursuant to sections 42 and 44 of the Schedule?
ii. Is the respondent entitled to the costs of the I.E. the applicant did not attend?
iii. Is either party entitled to costs of this preliminary hearing?
RESULT:
6The applicant may continue with her application at the Tribunal.
7The respondent has until September 18, 2020 to provide the applicant with any further attendant care reports or assessments it will be relying upon for the hearing.
8By October 30, 2020, the applicant must provide to the respondent any addendum or responding reports relating to the above noted attendant care report.
9The respondent is not entitled to the costs of the I.E.
10Neither party is entitled to costs of the preliminary hearing.
RELEVANT FACTS
11The applicant was involved in a motor vehicle accident on May 30, 2016 (the “Accident”).
12The applicant submitted an OCF-19, Application for Determination of Catastrophic Impairment to the respondent.
13On or about February 13, 2019, the respondent informed the applicant that, following their assessment, they do not accept that she is catastrophically impaired as result of the Accident.
14On June 12, 2019, the applicant submitted her application to the Tribunal and the issues in dispute are a determination of catastrophic impairment and her entitlement to attendant care benefits (AC Benefits) in the amount of $6,000.00 per month from May 30, 2016 to date and ongoing (the “Application”).
15On or about November 5, 2019, the respondent sent a notice of examination (the “I.E. Notice”) to the applicant for an assessment for AC Benefits pursuant to section 44 (the Section 44 Assessment).
16The applicant never attended the Section 44 Assessment.
17On January 8, 2020, a case conference took place resulting in an Order.
18On January 31, 2020, the Applicant submitted an updated Form 1 (Assessment of Attendant Care Needs) with an accompanying report.
SUBMISSIONS OF THE PARTIES
A) Respondent’s Submissions
19The respondent submits that the applicant should be barred from proceeding with her claim for AC Benefits because of her non-attendance at the Section 44 Assessment and relies on section 55(1)2 of the Schedule.
20The respondent submits that the Section 44 Assessment was properly requested and scheduled as per the Schedule and that the applicant refused to attend without a reasonable explanation.
21Lastly, the respondent submits that procedural fairness dictates that the respondent should have the opportunity to address AC Benefits for the hearing and relies on F.S. and Belair Insurance Company Inc.2 and Gonsalves and Certas Direct Insurance Company3.
B) Applicant’s Submissions
22The applicant submits that for the respondent to invoke section 55(1)2 it must first show that the Section 44 Assessment was properly scheduled.
23The applicant submits that Section 44 Assessment was not properly scheduled as per the following:
i. The respondent failed to comply with section 42(7) by not requesting an updated Form 1 from the Applicant to determine ongoing entitlement to AC benefits.
ii. The respondent’s I.E. Notice is deficient as it does not provide a medical reason for the Section 44 Assessment.
iii. The respondent failed to identify the title of the regulated health professional in the I.E. Notice.
24Further, the applicant submits that the Section 44 Assessment is not proper because the respondent does not accept that the applicant is catastrophically impaired, and that because 104 weeks have passed since the Accident then Y.R. would not qualify for AC Benefits until the Tribunal finds the applicant catastrophically impaired. Therefore, the Section 44 Assessment is not a proper assessment.
25Lastly the applicant submits that the respondent only requested the Section 44 Assessment to bolster its position at the hearing.
ANALYSIS AND REASONS:
A) I.E. Notice Not in Compliance with the Schedule
26The applicant’s position is correct that before the respondent can invoke section 55(1)2 of the Schedule, it must show that the I.E. Notice provided to Y.R for the Section 44 Assessment was compliant with the Schedule.
27Sections 42(7) and (8) of the Schedule state the following:
(7) If an insurer wants to determine if an insured person is still entitled to attendant care benefits, wants to determine if the benefits are being paid in the appropriate amount or wants to determine both, the insurer shall give the person a notice requesting that a new assessment of attendant care needs for the insured person be prepared in accordance with this section and submitted to the insurer within 15 business days after the insured person receives the notice.
(8) Subject to subsection (12), a notice under subsection (7) may also advise the insured person that the insurer requires an examination under section 44.
28This section obligates the insurer to get an updated Form 1 from the applicant before it makes any changes or decisions regarding the applicant’s entitlement to the AC benefits. As part of this request for an updated Form 1, the respondent can request a section 44 assessment.
29Pursuant to sections 42(10) and (11), a section 44 assessment can also be requested if the applicant submits a new Form 1 that increases the amount of the AC Benefits.
30Therefore, as per the Schedule, the respondent can only request a section 44 assessment if it requests a new Form 1 from the applicant or if a new Form 1 (that increases the amount of the monthly benefit) is provided by the applicant. In this case the Notice of I.E. was done without a request for a new Form 1 and done prior to receipt of a new Form 1 and, thus, was not done in compliance with the Schedule.
31As the Notice of I.E. was not in compliance with the Schedule, the respondent cannot rely on Section 55(1)2 to bar the applicant’s application and the applicant can continue with her application.
B) Curing the Deficiencies
32Despite the above finding that the I.E. Notice was not in compliance with the Schedule, that finding does not take away the respondent’s right to bring forth another notice of assessment for AC Benefits that complies with the Schedule. In other words, based on the above, the respondent could very well request a section 44 assessment that does comply with the Schedule.
33The Tribunal can exercise its discretion to make interim decisions and orders that ensure a timely resolution of the merits of the proceedings and I am prepared to do so in this case by finding that the request for a Section 44 Assessment is reasonable in the circumstances and it would be unfair for the respondent to proceed to a hearing without the opportunity to provide a responding report on AC Benefits, as long as the notice of an assessment for AC Benefits and all aspects relating to the potential assessment for AC Benefits conforms to the Schedule.
34I make this finding based on the circumstances in this case. Firstly, the hearing in this matter is scheduled for November 30, 2020 and this provides ample time for the responding report to be completed prior to the hearing without jeopardizing the date of the hearing.
35Secondly the applicant provided a Form 1 and AC Benefit report dated January 30, 2020 and will be relying upon it at the hearing. To not allow the respondent to respond to this report would be procedurally unfair especially in light of the fact that the last time the respondent assessed the applicant with respect to Attendant Care Benefits was in 2016.
36Thirdly, I do not agree that because the respondent takes the position that Y.R. is not catastrophically impaired that the respondent does not have a right to an AC Assessment post 104 weeks. The applicant has provided no case law or authority for this.
37Both parties agree that if the applicant is determined to not be catastrophically impaired then there are no further attendant care benefits available to her. The fact of the matter is that the issues in dispute at the hearing are, firstly, is the applicant catastrophically impaired as per the Schedule. The second issue for the hearing could be reworded as “if the applicant is catastrophically impaired then is the applicant entitled AC Benefits?”
38Both parties have the right to tender evidence at the hearing supporting their positions and the parties also have the right and should be afforded the opportunity to tender evidence disputing the other parties’ position. The only mechanism that the respondent has to provide their own medical reports at a hearing is by invoking Section 44 of the Schedule.
39Lastly, I find that the request for the Section 44 Assessment would have been reasonable and necessary, assuming it was in compliance with the Schedule. I would also find that the respondent’s Section 44 Assessment request falls within the timeline of section 42(12) of the Schedule that states in part that if more than 104 weeks have elapsed since the accident
…the insured person shall not submit nor be required to submit an assessment of attendant care need to the insurer unless at least 52 weeks have elapsed since the last examination under section 44 relating to entitlement to attendant care benefits.
40To cure the potential unfairness of the respondent proceeding to a hearing without the opportunity to provide a responding report on AC Benefits, I order that the respondent has until September 18, 2020 to provide the applicant with its AC Benefits assessments that it will be relying upon for the hearing.
41To be clear the respondent only has right to the section 44 assessment and/or a responding report on AC Benefits, as long as the notice of an assessment for AC Benefits and all aspects relating to the potential assessment for AC Benefits conforms to the Schedule.
42The applicant has until October 30, 2020 to provide any further reports, responding reports, or addendum reports relating to the AC Benefits assessments responding to the respondent’s reports.
CONCLUSION
43Based on the above, the applicant may continue with her application as the respondent did not provide the applicant with an I.E. Notice in accordance with the Schedule that it requires an examination under section 44.
44The respondent is not entitled to the cost of the Section 44 Assessment as the respondent did not provide notice in accordance with the Schedule that it requires an examination under section 44.
45Neither party is entitled to costs of this preliminary issue hearing as there was no evidence showing that either party acted unreasonably, frivolously, vexatiously, or in bad faith.
ORDERS
46I have allowed the respondent time to properly notify the applicant of a section 44 assessment and to provide the resulting report to the applicant. As well I am prepared to allow the applicant time to provide any responding or addendum reports based on the Section 44 Assessment and therefore, I make the following Orders:
i. By September 18, 2020 the respondent must provide to the applicant any further attendant care reports or assessments it will be relying upon for the hearing.
ii. By October 30, 2020 the applicant must provide to the respondent any further reports, responding reports, or addendum reports relating to the above noted attendant care report.
iii. The above dates may be varied on consent only at the resumption of the case conference.
Released: July 3, 2020
Monica Chakravarti
Adjudicator
Footnotes
- O.Reg. 34/10
- [1996] O.I.C.D. No. 92
- [2011] O.J. No. 3290, 2011 ONSC 3986 (Div. Ct.)