Strickland v. Economical Insurance, 2021 CanLII 45644

Licence Appeal Tribunal

Citation: Strickland v. Economical Insurance, 2021 ONLAT 20-001811/AABS-PI

Release date: 05/26/2021

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:

Tara Strickland Applicant

and

Economical Insurance Respondent

PRELIMINARY DECISION AND ORDER

ADJUDICATOR: Monica Chakravarti

APPEARANCES:

For the Applicant: Nima Azizi, Counsel

For the Respondent: Lisa Armstrong, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was involved in a motor vehicle accident on November 10, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010¹ (the "Schedule"). The respondent denied the applicant's benefits and the applicant then applied to the Licence Appeal Tribunal (the "Tribunal") for the resolution of the dispute.

2At the case conference, prior to the hearing, the respondent raised a preliminary issue that the applicant is barred from proceeding with her appeal for medical and rehabilitation benefits because the applicant failed to attend the insurer examination (IE) pursuant to section 44 of the Schedule. The applicant admits that she did not attend the examination and disputes the lawfulness, necessity and reasonableness of same.

ISSUE TO BE DETERMINED

3The issue to be decided in this preliminary hearing is:

a. Is the applicant barred from commencing a proceeding because she failed to comply with section 44 of the Schedule by not attending the IE?

RESULT

4The applicant is not barred from commencing a proceeding at the Tribunal because the respondent's notice that it requires an IE was not in accordance with the Schedule.

ANALYSIS

5There is no dispute that the applicant did not attend the IE. The respondent submits that pursuant to section 55 of the Schedule, which is quoted below, the applicant is barred from applying to the Tribunal for resolution of her dispute because of her failure to attend the IE pursuant to section 44.

6The applicant submits that the IE was improper and not in accordance with the Schedule and therefore the applicant did not fail to attend the IE but rather there was no proper IE scheduled and hence the applicant is not barred from proceeding.

Is the IE improper?

7Section 44(1) states:

44(1): For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

8The applicant does not take issue with this section, the applicant however submits that the exception in section 44(3) applies

44(3): Subsection (1) does not apply with respect to,

(a) a benefit payable in accordance with the Minor Injury Guideline; or

(b) a funeral benefit or death benefit. O. Reg. 34/10, s.44 (3).

9Specifically, the applicant submits that pursuant to section 44(3) of the Schedule a section 44 assessment is not available to the respondent as the respondent takes the position that the applicant is within the MIG. Further, the applicant also submits that the notice for the section 44 assessment is insufficient and that the respondent after reviewing documents provided by the applicant should have removed her from the MIG thereby not necessitating a need for an assessment or should have done a paper review.

10Section 44(1) read in conjunction with 44(3) makes it clear that a respondent cannot perform an IE for the purposes of determining if a person is or continues to be entitled to a benefit payable in accordance with the MIG. However, that is not the case here. The IE sought is for a determination for benefits outside the MIG.

11At paragraph 3 of her submissions the applicant states:

"On January 23, 2018 the Applicant submitted an OCF-23 seeking treatment outside of the Minor Injury Guidelines ("MIG") because her injuries from the accident had surpassed the threshold which would have allowed her to be treated within the MIG. This treatment plan was denied by the insurer.

Tab 3 of the Applicant's Document Brief - OCF-23 dated January 23, 2018"

12The above is incorrect in that there was no OCF-23 submitted on January 23, 2018 and the attachment at Tab 3 in support of the applicant's submission is in fact the treatment plan (OCF-18) of January 23, 2018. The OCF-18 is for treatment outside the MIG because the OCF-18 specifically states that if the MIG applies an OCF-23 is required: "If this is an impairment that comes within the Minor Injury Guideline applicable to the accident (for accidents that occurred on or after September 1, 2010) an OCF – 23 Treatment Confirmation Form is required instead of this form."

13Further the OCF-18 of January 23, 2018 answers "No" to the question "Is this impairment predominantly a minor injury as referred to in the Minor Injury Guideline applicant to the accident?"

14The applicant confirms in the above submission that she is seeking treatment outside the MIG.

15The applicant submits that the respondent was not entitled to an IE for the purposes of determining if the applicant's injuries fall within the MIG and that "that the classification of an injury as falling within the MIG is distinguishable from evaluating whether the applicant is indeed "entitled to a benefit" as referenced in s. 44 of the SABS".²

16The applicant however, in her analysis fails to consider section 38(10) of the Schedule which specifically states:

(10) If the insurer has not agreed to pay for all goods, services, assessments and examinations described in the treatment and assessment plan or believes that the Minor Injury Guideline applies to the insured person's impairment, the notice under subsection (8) may notify the insured person that the insurer requires the insured person to undergo an examination under section 44.

17Here the insurer received the OCF-18 dated January 23, 2018 for treatment outside the MIG. On February 6, 2018 the respondent provided a letter stating that they believe that the Minor Injury criteria and the MIG apply to the applicant's injury/impairment in accordance with Section 38(10) and therefore they are requesting an IE³

18Therefore, I find that the exception in section 44(3) does not apply as the respondent could seek an IE for the purposes of determination for entitlement to treatment outside the confines of the MIG.

Did the Respondent Provide Proper Notice Pursuant to the Schedule?

19Section 55 (1) of the Schedule states

55. (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:

56. 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.

20It must first be determined if the respondent provided the applicant with notice in accordance with the Schedule that it requires the IE.

21Section 44(5) of the Schedule requires IE notices to set out the medical and any other reasons for the IE. Pursuant to section 38(8) a notice denying the goods and services of an OCF-18 requires the respondent to provide the medical and all other reasons why it considers the goods and services in the OCF-18 not to be reasonable and necessary and section 38(9) requires, in addition to the reasons in section 38(8), that the respondent in the notice advise the applicant that it believes the MIG applies (if that is the belief of the respondent).

22The notice denying the benefits in the OCF-18 and the notice setting up the IE in the letter of February 6, 2018 are described in detail below.

23The respondent argues that the notices complied with the Schedule and provided the medical reason for the requested IE. The applicant submits that the reasons given in denying the treatment plan and the reason for the IE, were vague and failed to make any specific mention of the applicant's injuries. The respondent submits however that at no time prior to this hearing did the applicant assert that it did not understand the basis for the request for the IE.

24I find that the respondent's notice under section 38(8) and section 44(5) was deficient under the Schedule. The respondent in providing the notice of the denial to the OCF-18 on February 6, 2018 fulfilled the requirement of section 38(9) but did not fulfill the requirements of section 38(8). The respondent's reasons for the denial of the OCF-18 and the need for the IE were stated in the notice letter of February 6, 2018 as follows:

Upon review of the Treatment and Assessment Plan, we believe that the Minor Injury criteria and the Minor Injury Guideline apply to your injury/impairments. In accordance with section 38(1) of the [Schedule] we are requesting an Insurer's Examination to help us determine whether the proposed Treatment and Assessment Plan is reasonably required for the injury/impairment you sustained in this motor vehicle accident."

25Section 38(8) makes it clear that the respondent is to provide reasons for why it considers any goods and services, assessment and examinations or the proposed cost of them, not to be reasonable and necessary and section 44(5) as well requires the respondent to set out the medical and any other reasons for the IE. The above notice of February 6, 2018 does not do this and in fact does not even tell the applicant that it is not agreeing to pay for the treatment plan and instead simply states that "we are not approving funding at this time". No reasons are given at all as to why the treatment plan is not reasonable and necessary and at no time is the applicant told in a clear way that the respondent is not approving the treatment plan because the MIG applies and the reasons why the respondent believes the MIG applies. The applicant is simply told that the respondent believes the MIG applies and no reasons as to how or why the respondent is under this belief is provided.

26I also am guided by the jurisprudence of the Tribunal and the decision of the Executive Chair's in M.B. v. Aviva⁴ which provided the following guidance for insurers on how to satisfy their procedural obligations under s.38(8) and 44(5) of the Schedule.

"an insurer satisfies its obligation to provide its "medical and any other reasons," whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured's medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. […] Ultimately, an insurer's "medical and any other reasons" should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue Only then will the explanation serve the Schedule's consumer protection goal."

27I agree with the principles highlighted by the Executive Chair in M.B. v. Aviva in that an unsophisticated person should be able to understand why a benefit is being denied in order to make an informed decision to dispute a denial and why the respondent is requesting an IE. The notice of February 6, 2018 was deficient for the reasons noted above and to expect the applicant to understand the MIG and the "minor injury" definition in the Schedule in order to understand reasons for the notice goes against the consumer protection intent of the Schedule.

28Further, the subsequent notice of the IE on February 14, 2018 is also contrary to the Schedule. This letter fulfills the details required under the Schedule of where when and with whom the IE will take place, however it provides no information as to why an IE is required and why the benefit is being denied pending the IE.

29I agree with the applicant the notices for the IE and the notice denying the OCF-18 are vague do not make mention of any injuries or reasons for the denial that could be understood by the applicant in order for her to make an informed decision to dispute the denial. By simply stating that the respondent believes the MIG applies without stating which injuries it believes to be in the MIG or anything more falls short of what is expected in the notice of denial and the notice of the IE under the Schedule.

30Under section 55(2), a proper notice of the IE is a condition precedent prior to the respondent being able to bar the applicant's appeal. The respondent did not provide a notice in compliance with the Schedule and therefore section 55 cannot be invoked to bar the applicant's application.

31With respect to the other consequences in the Schedule based on the improper notices they are outside the scope of this hearing as they speak to the merits of the issues in the appeal and not to the preliminary issue of barring the applicant from proceeding with her appeal.

CONCLUSION and ORDER

32Based on the reasons above the respondent did not provide notice in accordance with the Schedule that it requires an IE and therefore the applicant is not barred from appealing her dispute at the Tribunal.

Footnotes

1. 1O. Reg. 34/10
2. 2Paragraph 16 of the applicant's submissions.
3. 3Tab 3 of the respondent's document brief.
4. 42017 CanLII 87160 (ONLAT) (Reconsideration Decision) at para. 26.