Released Date: 09/16/2020
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:
Reem Omar
Applicant
and
Co-operators General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
VICE-CHAIR: D. Gregory Flude
APPEARANCES:
For the Applicant: Tania Lanteigne, Paralegal
For the Respondent: Kathleen O’Hara, Counsel
HEARD: By Written Submissions
PRELIMINARY ISSUE REASONS FOR DECISION AND ORDER
OVERVIEW
1The respondent, the Co-Operators General Insurance Company (the “Co-Operators”), brings this motion to dismiss the applicant Reem Omar’s claim for statutory accident benefits because it alleges that she has breached her obligations to attend at medical examinations arranged by the Co-Operators and to disclose relevant documents in a timely manner.
2Ms. Omar has been involved in two automobile accidents recently, one on July 7, 2017 being handled by Aviva Insurance Company of Canada (the “Aviva claim”). and the subject accident on July 6, 2018. This has led to some confusion about which impairments have been sustained in which accident. Currently, she has applied for various accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg 34/10 (the “Schedule”), including a non-earner benefit, physiotherapy treatment, an attendant care assessment and interest for impairments she attributes to the subject accident on July 6, 2018.
3The Co-Operators reviewed the claim and decided that it needed more documentation about her pre-accident medical history, especially in light of the previous accident. It requested that documentation. It asserts that the documentation it did receive was tardy and seriously deficient. It asserts there are still relevant documents that have not been disclosed so that it cannot properly adjust the file. In the Co-Operators’ view, Ms. Omar’s behaviour is sufficiently egregious that her claim should be dismissed.
4The Co-Operators also required Ms. Omar to attend at a medical examination on November 8, 2018. She did not attend. A second medical examination was scheduled for November 29, 2018. Ms. Omar did not attend that examination. The Co-Operators submits that her failure to attend properly scheduled examinations constitutes grounds to dismiss Ms. Omar’s application under the Schedule.
5I find that Ms. Omar’s failure to attend properly scheduled insurer medical examinations constitutes grounds for dismissal of her application to the Tribunal. In the absence of a reasonable explanation for the non-attendance, I do not think this is a case for me to exercise my discretion to permit Ms. Omar’s application to proceed on terms.
PRELIMINARY ISSUES
6The preliminary issues in dispute were identified in the Tribunal’s order released on May 7, 2020 as:
a. Should Ms. Omar’s application be dismissed for non-compliance arising out of her failure to attend two Section 44 assessments scheduled by the respondent;
b. Alternatively, should the applicant’s application be dismissed for non-compliance pursuant to Section 33 of the Schedule?
RESULT
7Ms. Omar’s application should be dismissed for failure to attend s. 44 assessments. I can see no authority under s. 33 to dismiss for a failure to disclose documents. Section 33 has its own remedies, notably the suspension of benefits during periods of non-compliance, absent a reasonable excuse.
Applicable SECTIONS OF THE SCHEDULE
8The Schedule is a code for dealing with claims for no-fault accident benefits in Ontario that mutually obliges Ms. Omar and the Co-Operators to work together to assess her entitlement to benefits. Ms. Omar has failed to fulfil her obligations.
9The Schedule obliges the Co-Operators to pay benefits to help remediate impairments sustained as a result of an accident. The Co-Operators obligations are not absolute. There are monetary limits depending on the severity of the injuries or impairments sustained and there are time limits. For instance, s. 12(3)(c) limits the obligation to pay a non-earner benefit to 104 weeks after the accident.
10Ms. Omar’s obligations that the Co-Operators alleges she has not fulfilled are set in ss. 33 and 44 of the Schedule. The heading of s. 33 captures the concept well: “Duty of applicant to provide information.” The section goes on to state:
(1) An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:
Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
A statutory declaration as to the circumstances that gave rise to the application for a benefit.
The number, street and municipality where the applicant ordinarily resides.
Proof of the applicant’s identity.
11Subsections 33(6) and (8) identify the consequences for Ms. Omar if she fails to comply with her obligations under s. 33(1) and gives Ms. Omar the right to provide a reasonable excuse for non-compliance:
(6) The insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with subsection (1) or (2).
(8) If an applicant who failed to comply with subsection (1) or (2) subsequently complies with that subsection, the insurer,
(a) shall resume payment of the benefit, if a benefit was being paid; and
(b) shall pay all amounts that were withheld during the period of non-compliance, if the applicant provides a reasonable explanation for the delay in complying with the subsection.
12The Co-Operators also has the right under s. 44, to require Ms. Omar to be examined by a regulated health professional or a person with expertise in vocational rehabilitation but the right is limited to “not more often than is reasonably necessary” (“s.44 IE”). Other subsections in s. 44 deal with how appointments are to be arranged and what information the Notices of Examination must contain.
13Ms. Omar has not questioned the timeliness or sufficiency of the Notices of Examination under s.44 nor the relevance of the documents requested under s. 33 or that they are reasonably required by the Co-Operators to assess her claim. Nor does she allege that the scheduled appointments were more often than reasonably necessary. The only issue left in dispute with respect to her non-attendance is her justification for not attending the scheduled s. 44 IEs.
14Failure to attend a s. 44 IE triggers the provisions of s. 55 of the Schedule. The applicable provisions of that section state:
(1) 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 this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.
(2) The Licence Appeal Tribunal may permit an insured person to apply despite paragraph 2 … of subsection (1).
(3) The Licence Appeal Tribunal may impose terms and conditions on a permission granted under subsection (2).
ANALYSIS
15Ms. Omar claims that she has sustained severe injuries in the subject accident. The Co-Operators seeks to verify her claim. The confusion over the nature of her injuries starts with the Disability Certificate (OCF-3) completed on July 10, 2018, four days after the accident. The OCF-3 asks for information about the injuries and sequelae of the accident. It asks the examiner to: “Provide a description (list most significant first) and associated ICD-10-CA code for Injuries and sequelae that are the direct result of the automobile accident.” The author of the OCF-3, Dr. Murray McCutcheon, a chiropractor, lists Ms. Omar’s injuries as:
a. Multiple compression fractures of thoracic spine T11 T12,
b. Sciatica,
c. Lumbago with sciatica,
d. Whiplash associated disorder (WAD3) with complaint of neck pain with neurological signs,
e. Non-organic sleep disorders,
f. Malaise and fatigue,
g. Dizziness, and
h. Chronic post-traumatic headache.
16A first perusal of the list raises the question how chronic headaches can be diagnosed on the fifth day following the accident, since chronicity involves pain that lasts for some months and extends beyond the expected recovery time. It suggests Dr. McCutcheon was aware of a longer period of headaches that were not caused by this accident. But there are more fundamental inconsistencies. Under Part 8 of the OCF-3 – “Prior and Current Conditions” – Dr. McCutcheon notes pre-existing health issues that may indicate that items on the list above are not as a direct result of the accident. He notes pre-existing:
a. HIGH BLOOD PRESSURE
b. DISC BULDGE [sic] L4-5 L5S1 WITH NUERAL [sic] FORAMINAL NARROWING AND NERVE ROOT COMPRESSION SPINAL STENOSIS L4/5
c. PRE EXHISTING [sic] ANTERIOR WEDGE COMPRESSION FRACTURES T11 AND T12
17It is not my role in this motion to weigh the medical evidence. I have reviewed it simply to show why the Co-Operators would seek further documentation and want the conduct its own s. 44 IEs.
18As early as July 18, 2018, Ms. Omar did submit some medical documentation to the Co-Operators. That documentation included a report dated July 8, 2018 commenting on a medical imaging study conducted on the day of the accident. It notes:
a. Note is made of a scoliosis of the lumbar spine convex to the right centered at L2-L3.
b. There is mild degenerative disc disease in the lumbar spine. No fracture, spondylolysis or spondylolisthesis.
c. No significant change compared to previous examination.
d. Additional images of the thoracic spine were also performed and there is a mild anterior wedge compression at the T11 level and another at the T12 level which are unchanged compared to the chest x-ray study from February 2018.
e. IMPRESSION: Mild anterior wedge compressions at T11 and T12 which are stable. [emphasis added]
19In light of these inconsistencies, and Ms. Omar’s continued assertion in paragraph 17 of her submissions that she “sustained severe injuries including a chronic anterior wedge compressions [sic] at T1[sic, T11?] and T12,” it is not surprising that the Co-Operators sought more records and wanted to do its own s. 44 IEs.
20By letter dated October 18, 2018, the Co-Operators advised Ms. Omar that it required her attendance at a s.44 IE on November 8. The accompanying Notice of Examination set out the date, time and place, and the name and specialty of the examining doctor. On November 1, Ms. Omar’s counsel faxed the Co-Operators stating: “Please be informed that the above-mentioned client has a scheduled IE appointment on November 8th, 2018 at 12:00pm. The client will not be able to attend due to scheduling conflicts.” No further explanation was advanced about the nature of the scheduling conflict until Ms. Omar filed her submissions for this motion.
21In her submissions, Ms. Omar states that the scheduling conflict was because she had an appointment with Midland Wellness Centre (“MWC”), the facility she had been attending regularly for treatment of her condition. She produced a letter from MWC that purports to confirm that she had an appointment on November 8, 2018. The letter is dated June 12, 2020, 20 months after the events it describes, and is unsigned. It states: “Please be advised that the above mentioned [sic] client attended our facility on November 08, 2018 at 12.00 PM for the [sic] physical consultation, psychological intervention and also he had an [sic] case review with the clinic manager.”
22The letter’s contents are specific about what occurred at the clinic on that day and suggest that the author referred to clinical notes and records. Ms. Omar has produced some records of MWC. No notes relating to a November 8, 2018 visit, a physical consultation, psychological intervention and case review were entered into evidence on the motion.
23The Co-Operators did put MWC’s sign-in sheets into the record. Ms. Omar testified at her examination under oath that she was required to sign in every time she walked into MWC. The sign-in sheets show that she attended on November 7 and again on November 28, 2018. I find on a balance of probabilities that Ms. Omar did not have a scheduling conflict on November 8, 2018 arising from an appointment at MWC as she alleges that prevented her from attending the s. 44 IE.
24The Co-Operators rescheduled the s. 44 IE for November 29, 2018 and forwarded a Notice of Examination. On November 22 Ms. Omar’s legal representative sent a fax requesting an Arabic interpreter for the November 29 s. 44 IE. The Co-Operators arranged for an Arabic interpreter. Ms. Omar did not show for the s. 44 IE.
25In her rather confused submissions around the subject of non-attendance, Ms. Omar makes the following comments about her failure to attend on November 8, 2018. She states that her law firm received a letter from MWC about the November 8 appointment but failed to forward that letter to the Co-Operators, but that failure should not be held against the client. The letter footnoted is the letter dated June 12, 2020, almost two years after the event. Put bluntly, her submission says that her law firm failed to forward a letter in and around November 8, 2018 that was not in existence until June 12, 2020.
26Ms. Omar also submits that the major problem why she did not attend on November 8 was that she required an Arabic interpreter, and none was scheduled as far as she knew. This is at odds with her position that her non-attendance resulted from a scheduling conflict. It was also easily addressed by confirming with the Co-Operators that an interpreter had been scheduled as she did on November 22. She does not assert the lack of an interpreter as a problem for non-attendance on November 29.
27The confusion only intensifies when the non-sequitur in paragraph 61 of Ms. Omar’s submissions is considered. According to Ms. Omar, her ultimate compliance with s. 33 and the severity of her injuries explain her non-attendance at the s. 44 IEs. The Co-Operators acknowledges receipt of some documents but outlines an extensive list of relevant documents yet to be received calling s. 33 compliance into question. Further, there is no evidence to suggest that Ms. Omar’s injuries prevented her attendance at either of the s. 44 IE appointments. There is, in fact, no coherent or credible explanation for Ms. Omar’s non-attendance at either s. 44 IE appointment.
28Because of my findings with respect to non-attendance at s. 44 IEs and the consequences it attracts, I need not address the impact of her failure to disclose documents under s. 33 of the Schedule.
CONCLUSION
29Section 55 of the Schedule prohibits Ms. Omar from applying to the Tribunal as she has failed to attend the properly scheduled s. 44 IEs. Almost two years after her non-attendance she still seems to be seeking a justification and I place no weight on the MWC letter dated June 12, 2020.
30Section 55(2) gives me discretion to permit the application to proceed and by virtue of s. 55(3) I may apply terms. This is not a situation where I will exercise my discretion. There were back to back non-attendances and no effort was made to deal in good faith with the Co-Operators in permitting it to objectively review Ms. Omar’s medical condition and come to a decision on entitlement to benefits.
31Even at this late stage, Ms. Omar still advances conflicting justifications for her non-attendance. In the absence of a coherent and credible explanation, I decline to exercise my discretion.
ORDER
32Ms. Omar’s application to the Tribunal for statutory accident benefits arising out of the July 6, 2018 accident is dismissed pursuant to s. 55 of the Schedule.
Released: September 16, 2020
__________________________
D. Gregory Flude
Vice-Chair