[S.M.] v. Certas Home and Auto Insurance Company, 2020 CanLII 69624

Released date: September 2, 2020

Tribunal File Number: 18-010866/AABS

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:

[S.M.]

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Asad Ali Moten

APPEARANCES:

For the Applicant: Aurora T. Mancuso, Counsel

For the Respondent: Jocelyn Tatebe, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on August 22, 2014. He sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”).

2Specifically at issue between the parties are the applicant’s claims for income replacement benefits and medication expenses for cannabis pursuant to a proposed treatment plan. The applicant applied to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the “Tribunal”) for resolution of these claims.

3As a preliminary matter, the respondent takes the position that the applicant is barred from pursuing his claims because he has not attended any of the independent examinations that the respondent requested pursuant to section 44 of the Schedule.

4The applicant argues that he is not barred from pursuing his claims because (a) the respondent has not issued a clear and unequivocal denial of his income replacement benefits claim; and (b) the insurer’s Notices of Examination to assess his medication expenses claim are faulty and he is therefore not required to attend.

ISSUES

5The preliminary issues to be decided are:

i. Is the applicant barred from disputing a denial of income replacement benefits in the amount of $400 per week from February 1, 2016 and ongoing?

ii. Is the applicant barred from disputing a claim for medication expenses in the amount of $5,326 submitted on November 20, 2017?

RESULT

6I find that the applicant is barred from disputing the denial of the income replacement benefits because he failed to attend a reasonable section 44 medical examination. For the same reason, the applicant is also barred from disputing a claim for medication expenses. The application is dismissed.

BACKGROUND

7The applicant was involved in an accident on August 22, 2014. He was operating a motorcycle when a third-party vehicle collided with him. His right foot and leg were trapped between the two vehicles and he was thrown from his motorcycle. He was 29 years old at the time and reports being employed as a handyman and a Site Supervisor for [a construction company]. He continued working at [the construction company] until he quit on January 31, 2016.

8The applicant reports being off work as a result of his injuries for approximately 2.5 weeks, from the date of the accident to September 8, 2014. The applicant submitted his Application for Accident Benefits (OCF-1) to the respondent on September 20, 2014.

9On September 10, 2014 the applicant submitted an OCF-3, completed by a physiotherapist, Mr. Balsno, which claimed income replacement benefits (IRB) and non-earner benefits (NEB) for a period of more than 12 weeks. On October 3, 2014 the respondent asked the applicant to file an Election of Benefits form (OCF-10) and Employer’s Confirmation Form (OCF-2).

10On October 8, 2014 the applicant submitted a second OCF-3, completed by his primary care physician Dr. Kumar. This OCF-3 claimed IRB for an unspecified period of time, and indicated that the applicant could gradually return to full-time hours and duties.

11On November 20, 2017 the applicant submitted an OCF-18 for $5,326 worth of cannabis.

12On November 16, 2018 the applicant commenced this application.

ANALYSIS

13Section 44 of the Schedule entitles an insurer to require an applicant to be examined by a medical professional of the insurer’s choosing. Such examinations can occur at any time, but not more often than is reasonably necessary. The insurer can elect to have an examination conducted in person or based on written documentation provided to the medical professional by the applicant and the insurer.

14Notice of a section 44 examination must include:

a. The medical and any other reasons for the examination;

b. Whether the attendance of the applicant is required;

c. The name of the person(s) conducting the examination and their titles, designations and specialties; and,

d. The date, time, and location of the examination.

15This Tribunal has held that insurers have the right to obtain examinations of applicants by health professionals of their choosing. They may also choose the method of the examination. And, while an examination must be reasonably necessary, depriving an insurer of the right to an examination can constitute procedural unfairness.¹

16Section 55(1)2. of the Schedule provides that an applicant is not permitted to apply to this Tribunal where the applicant has not complied with a Notice of Examination.

i. Is the applicant barred from claiming income replacement benefits?

17I find that the applicant is barred from disputing the denial of his claimed income replacement benefits.

18The applicant is of the position that he is not barred from disputing his entitlement to IRB because the respondent has not provided a clear and unequivocal denial to date, and there is no indication that a final determination has been made.

19The applicant submitted OCF-3 forms on September 10 and October 8, 2014. Both forms claim IRB for an unspecified amount of time.

20On February 6, 2015 the respondent notified the applicant that they had not yet received the applicant’s OCF-10 and OCF-2. The respondent also advised the applicant that he was to attend a section 44 insurer examination on March 12, 2015 to address the IRB claims, on March 24, 2015 to address the IRB and NEB claims, and on April 1, 2015 to address the NEB claims.

21The applicant responded on March 9, 2015, providing the requested OCF-10 and OCF-2, electing to pursue IRB claims. The applicant also advised that because the applicant has returned to work he will not be attending the section 44 examination on March 12. The respondent replied on March 19, 2015, taking the position that the applicant was not eligible for IRB until the applicant completed the section 44 examination.

22The respondent also advised that because the applicant resumed his pre-accident employment, he was no longer eligible to receive IRB beyond September 9, 2014.

23In August 2016 the applicant advised the respondent that he had resigned from his employment because of his accident-related injuries and ongoing impairments. The respondent advised that clinical notes and a record of employment would be required to consider IRB as part of a full and final settlement. It appears that from that point until late-2018 the parties were engaged in meaningful discussions as to whether the applicant was eligible for IRB given the change in his employment status.

24As part of this back-and-forth, the applicant submitted a section 25 orthopaedic assessment by orthopaedic surgeon Dr. Benmoftah, dated February 23, 2017, stating that the applicant’s development of chronic pain renders him unable to return to his pre-accident employment. The assessment report states that, as a direct result of the accident, the applicant suffers from:

a. Chronic post-traumatic headaches;

b. Chronic myofascial strain to the cervical, thoracic and lumbar spine, both shoulders, and right knee and ankle; and,

c. Chronic Pain Syndrome.

25The applicant claims that even as late as October 2018 the respondent had not issued a clear and explicit denial of the IRB claims. Rather, the parties were engaged in ongoing settlement discussions, and IRB formed a part of those discussions. Further, according to the applicant, the respondent left open the possibility of approving IRB subject to the applicant completing a section 44 examination.

26The applicant puts forward several cases in support of his argument that the respondent has not issued a clear and unequivocal denial of his IRB claims, and therefore he is not barred from disputing the claim. All of these cases are highly distinguishable from the present instance. All of them deal with the sufficiency of an explanation of benefits or a denial letter with respect to the commencement of limitation periods under section 56 of the Schedule. They are not about whether an applicant has to be denied a claim in order to pursue it before the Tribunal.

27In addition, with respect, the applicant’s argument fails an internal logic. He argues that because he has not been denied, he is not barred from pursuing his claim. The extension of this logic would be that if he had been denied, he would be barred. This would defeat the purpose of applying to this Tribunal. It only makes sense that an applicant can apply to this Tribunal where he has been denied a benefit by his insurer. The applicant states in his submissions: “there has been no stoppage.”

28The applicant misses the gist of the respondent’s argument, namely that the applicant must submit to a section 44 examination in order for the respondent to make a final decision. This was stated clearly This is not an unreasonable position. Insurers are entitled to have applicants be independently examined in order to determine the extent of the alleged impairments, subject to the general rule that such examinations not be requested more often than necessary.

29In this instance it is not about a denial of a benefit, but rather about the insurer’s reasonable request for the applicant to submit to an examination so a proper determination can be made. I find that the applicant’s failure to attend the examination as required bars him from pursuing his claim for income replacement benefits before this Tribunal.

ii. Is the applicant barred from claiming a medical expense for cannabis?

30I find that the applicant is barred from disputing the denial of his claim for medication expenses for cannabis.

31The applicant is of the position that he is not barred from pursuing his claim because the respondent has not provided proper notice, nor proper medical and other reasons for its denial or request for examination, and has not responded to the applicant’s request for further information.

32On November 20, 2017 the applicant submitted an OCF-18 form proposing a treatment plan of medication expenses for cannabis in the amount of $5,326.74. The applicant had already once submitted, and been approved for, cannabis as a proposed treatment plan via an OCF-18 submitted April 8, 2017 in the amount of $5,337.74.

33The respondent replied on November 30, 2017, alleging that the treatment proposed was not reasonable or necessary, and requesting that the applicant submit to a section 44 insurer examination. The respondent scheduled the examination with physiatrist Dr. Marchuk for January 12, 2018. The respondent’s medical reason for requesting the examination was that it was now “three years post the date of the accident…” The applicant claims that the respondent’s December 4, 2017 correspondence scheduling the examination did not reference at all the OCF-18 at issue. This is technically correct. But it is not a reasonable reading of the respondent’s correspondence. The November 30, 2017 letter explicitly references the disputed OCF-18, and states that details of the section 44 examination “will be provided at a later date.” Four days later, on December 4, 2017, the respondent provides those details.

34The applicant responded that he was unavailable that day, and that he could attend an examination after January 21, 2018. The respondent obliged, moving the examination to January 26, 2018.

35On January 23, 2018 the applicant wrote to the respondent requesting more information and clarification about the proposed examination, and taking the position that because there was a chronic pain report from Dr. Benmoftah, the section 44 examination should be limited to a paper review.

36The respondent did not reply to the applicant’s request, and the applicant did not attend the re-scheduled section 44 examination.

37Consequently, the respondent denied the applicant’s proposed treatment plan for failure to attend, but advised the applicant that he could reschedule the section 44 examination. The applicant wrote back advising that he was still awaiting a response to his January 23, 2018 letter.

38On January 30, 2019 the respondent again notified the applicant of a scheduled section 44 examination. The respondent stated that there was a lack of medical evidence to support the proposed treatment plan, and that a section 44 examination was necessary. The examination was scheduled for March 15, 2019 with physiatrist Dr. Feigelson.

39Again, the applicant did not attend. He did not provide an explanation for his non-attendance.

40The respondent tried, a third time, to schedule a section 44 examination on June 20, 2019 with general practitioner Dr. Gauthier. And, for a third time, the applicant did not attend.

41In M.A. v. Intact Insurance Company,² this Tribunal outlined a two-part test in determining whether an insurer’s denial is valid and proper. First, the denial must be clear and unequivocal. It must be, simply put, a denial. It cannot be, as was the case in M.A., that a letter states that a benefit is both stopped and suspended. Second, the denial must outline the applicant’s dispute resolution options. The respondent bears the onus of proving that a denial is valid and proper.

42While I accept the applicant’s argument that the respondent has not answered his request for information, I was not pointed to any case law where a failure to respond to a request for information formed sufficient grounds to not attend a section 44 examination. On the other hand, as in M.A. above, I find that the respondent did provide a clear and unequivocal denial of the applicant’s claim for medication expenses in the November 30, 2017 letter. The respondent also sufficiently outlined the applicant’s dispute resolution options. Further, though the respondent issued a denial, the respondent also permitted the applicant to submit to a section 44 examination and remained open to reconsidering its decision.

43Again, the applicant’s failure to attend any of the numerous examinations that had been scheduled bars the applicant from pursuing his claim for medication expenses before this Tribunal.

CONCLUSION

44For the reasons above, I find that the applicant is barred from pursuing his claim for income replacement benefits and his claim for medication expenses for cannabis.

45The application is dismissed.

Footnotes

1. 1S.C. v. Aviva Canada Inc., 2017 CanLII 70684, at para. 19.
2. 22017 CanLII 76933 (ON LAT).