J.A. v. Intact Insurance Company, 2020 CanLII 47480

Citation: J.A. v. Allstate Intact Insurance Company, 2020 ONLAT 19-005110/AABS

Released Date: 07/16/2020

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.A.

Applicant

and

Allstate Intact Insurance Company

Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Mitchell J. Barber and Fawad Siddiqui, Counsels

For the Respondent:

Dylan Crosby, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant J.A. (“applicant”) was involved in an automobile accident on April 3, 2016 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule¹ - Effective September 1, 2010 (the ''Schedule'').

2Allstate Intact Insurance Company (“respondent”) denied the applicant’s claim for two treatment plans (OCF-18) on the basis that his injuries fall within the $3,500.00 limit of the Minor Injury Guideline (the “MIG”) and required him to attend s. 44 insurer’s examinations (“IEs”). 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 his application because he failed to attend s. 44 insurer’s examinations (“IEs”).

PRELIMINARY ISSUE TO BE DECIDED

4The preliminary issue to be decided is:

i. Whether the applicant is barred from proceeding with his claim for the disputed benefits as he failed to submit to an insurer’s examination under s. 44 of the Schedule?

RESULT

5I find that the applicant is barred from proceeding with his application because he failed to attend s. 44 insurer’s examinations.

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 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.

12Section 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).

13The onus is on the insured person to put forward a reasonable explanation for non-attendance at an IE.²

Respondent’s position

14The 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 him to attend IEs. The applicant’s reason for non-attendance is that s. 44 of the Schedule does not permit an IE to determine the applicability of the MIG. The respondent submits in its submissions and in reply submissions that this is legally incorrect because:

a) 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. Whether an insured is “entitled to a benefit” may turn on many factors, including whether the insured’s impairment falls within the MIG. The applicant’s suggested interpretation would preclude an insurer from obtaining expert evidence on one of the most common factors relevant to determining entitlement to benefits and is therefore not reasonable and would significantly undermine the utility of s. 44(1).

b) The applicant’s suggested interpretation would result in only insured persons being able to obtain expert opinion evidence concerning the applicability of the MIG. Here, the applicant has obtained two expert medical opinions concerning the applicability of the MIG and it would be unfair and prejudicial to the respondent to be prohibited from obtaining its own medical opinions on this.

c) 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.

d) Section 44(3) of the Schedule has no application to this case. Respondent relies on 16-004092 v. Certas Direct Insurance.³

e) The applicant will not be prejudiced if the application has been dismissed because the respondent’s letter dated May 19, 2017 has not provided a clear and unequivocal denial of the medical benefits in dispute such that the two year limitation period has not begun or run or, alternatively, any prejudice to the applicant results from the applicant’s unreasonable refusal to attend IEs.

Applicant’s position

15The applicant submits that he didn’t attend the IEs because:

a) The applicant determined that he was not legally required to do so and therefore he has not unreasonably refused to participate in the IEs.

b) The IEs are beyond the scope of examination permitted under the Schedule. There is no provision in the Schedule which permits an IE to directly address the applicability of the MIG. The applicant relies on ss. 38(8), (9) and (10), 44, and 55(1) of the Schedule.

c) Case law has established that the insured bears the burden of proof in establishing their level of the three tiers of benefit. An IE can only address entitlement to a benefit and the MIG is not a benefit.

d) 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.

e) The applicant also submits that the respondent’s correspondence dated May 19, 2017 fails to satisfy the minimum notice requirements where the respondent believes that the MIG might apply.

f) 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 He Did Not Attend s. 44 IEs?

16With 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.

17I find that the applicant and his counsel, based on their interpretation of the Schedule, incorrectly took the position that the applicant was not legally obligated to attend the IEs.

18The 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 to argue that “nowhere in any of the above noted provisions, nor in any other sections of the SABS, is it permissible for an insurer to compel an insured to participate in an Insurer’s Examination under s. 44, specifically for the purposes of determining applicability of the MIG.” 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 Insurer’s Examination 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 Insurer Examination 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 two treatment plans in dispute in the applicant’s application are the benefits.

19The applicant’s arguments have been made to the Tribunal before and rejected in 18-000813 v. Co-operators General Insurance Company⁴. While this decision is not binding on me, I adopt the interpretation of these sections of the Schedule it contains.

20Although 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 two disputed treatment plans set out medical and other reasons, including the MIG and meet the Schedule’s requirements.

21The applicant argues that the May 19, 2017 notice is “wholly unclear as to the medical reasoning” and does not comply with the requirements in previous decisions.⁵ Although these decisions are not binding on me, I do not find the notices to be unclear and find that they substantially meet the Schedule’s requirements. The correspondence attached to the May 19, 2017 notice refers to s. 38 8), sets out the recommendation of the treatment plan which indicates it has been reviewed, expresses concerns about the MIG which indicates it has been compared to the proposed treatment plan and notes based on the medical information on file, the applicant’s injuries fall within the MIG. The May 19, 2017 notice sent by the respondent is clear and gives the reason for the IE: “Is the OCF-18 dated April 11, 2017 in the amount of $2486. Reasonable and necessary? If so, can it be treated within the MIG?” The medical reason given is “Based on the medical information on file, injuries fall within the Minor injury Guideline. A review of the file indicates treatment has been approved to the Minor Injury Guideline maximum of $3500.” The respondent’s February 13, 2018 notice contains substantially the same wording.

22I find that the respondents notices for the IEs comply with s. 38(9) because they advise the applicant that his injuries fall within the MIG.

23I 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 Company⁶ that “I agree with Co-operators’ submission 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 (as did the respondent in reply).

24I find that the applicant was required to attend the IEs for the two treatment plans 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 Company⁷ 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.”

25I find that s. 44(3) of the Schedule has no application to this case. In 16-004092 v. Certas Direct Insurance⁸ 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 his injuries do not fall within the MIG according to the Tribunal’s case conference Order and the disputed treatment plans exceed $3,500.00.

26I find unpersuasive the applicant’s argument that the MIG can be determined by a paper review and an in-person IE is not necessary. This is not a reasonable excuse for failing to attend a properly requested and scheduled s. 44 IE.⁹ Nor is it a reasonable excuse, as argued by the applicant, that the applicant objected to the qualifications of the IE assessor.¹⁰

27I 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. I agree with the respondent’s submission in reply that 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.

28I find that the applicant is barred from proceeding with his application because he failed to attend s. 44 IEs without reasonable explanation.

29Although 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 his non-attendance at the IEs. Almost all of the applicant’s legal arguments have been rejected by the Tribunal in the previous decisions referred to above and were unlikely to succeed.

ORDER

30The applicant is barred from proceeding with his application pursuant to s. 55 of the Schedule because he failed to attend IEs.

Footnotes

1. 1O.Reg. 34/10.
2. 2Horvath 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.).
3. 316-004092 v. Certas Direct Insurance, 2017 CanLII 70683 (ONLAT).
4. 418-000813 v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT).
5. 5Kadian Augustin v. Unifund Insurance Company, FSCO A12-000452; S.S. v. Aviva Insurance Company, 2017 CanLII 33689 (ONLAT).
6. 618-000813 v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT), para. 14.
7. 718-000813 v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT), para. 16.
8. 816-004092 v. Certas Direct Insurance, 2017 CanLII 70683 (ONLAT) para 20.
9. 918-000813 v. Co-operators General Insurance Company, 2019 CanLII 22194 (ONLAT) para. 17.
10. 10C.G. v. Certas Home and Auto Insurance Company, 2019 CanLII 51299 (ONLAT) para. 19.