Citation: Hamad v. Travelers Insurance, 2021 ONLAT 19-014581/AABS – PI - A

Amended Release date: 07/19/2021

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:

Donia Hamad

Applicant

and

Travelers Insurance

Respondent

AMENDED PRELIMINARY ISSUE DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Stephanie Weir, Counsel

For the Respondent:

Lisa A. Armstrong, Counsel

HEARD:

By way of written submissions

OVERVIEW

1This applicant was injured in an accident on November 24, 2017 and sought various medical benefits, as well as attendant care and a non-earner benefit (“NEB”) from the respondent, Travelers, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Travelers denied the applicant’s claims on the basis that it did not have sufficient medical information to support her impairments.

2Travelers made s. 33 requests for more documentation and scheduled several s. 44 assessments to address the applicant’s claims. The applicant refused to attend the s. 44 assessments on the basis that Travelers had not provided valid medical reasons or notices. Travelers took the position that she was in non-compliance. The applicant disagreed and applied to the Tribunal for resolution of the dispute, leading to Travelers raising a preliminary issue that she was statute-barred.

ISSUE IN DISPUTE

3The Case Conference Order set out the preliminary issue in dispute as follows:

i. Is the applicant barred from proceeding with her claim for NEB and med-rehab benefits as she failed to submit to insurer’s examinations under s. 44 of the Schedule?

RESULT

4The applicant is statute-barred from proceeding with her application for NEB and the psychological OCF-18 under s. 55(1)2 due to her failure to attend at properly scheduled s. 44 assessments.

ANALYSIS

The applicant’s claims and procedural history

5The accident occurred on November 24, 2017. On December 11, 2017, the applicant submitted a disability certificate (“OCF-3”) and an OCF-18 for chiropractic services. The OCF-3 supported entitlement to a NEB, but no other medical documentation was provided. On January 5, 2018, Travelers provided the applicant with notice that she was required to attend a s. 44 assessment to assist in the determination of whether she was in the minor injury guideline (“MIG”) and entitled to the NEB. On February 16, 2018, a notice of examination for physiatry and in-home occupational therapy (“OT”) assessments was sent.

6On March 27, 2018, Travelers wrote to the applicant noting that she had failed to attend the physiatry assessment and that the occupational therapist who attended at her home was turned away at the door when the applicant stated she was unaware of the assessment. Travelers advised it would reschedule the assessments and provided notice of same on April 11, 2018.

7On May 15, 2018, Travelers wrote to the applicant again, noting she failed to attend the rescheduled s. 44 assessments. As a result, Travelers informed the applicant that it was holding her in non-compliance due to non-attendance.

8On May 23, 2018, applicant’s counsel advised Travelers that the applicant would attend one s. 44 assessment to address the OCF-18 and NEB claims. Travelers advised that it required more than one assessment and written confirmation that the applicant would attend and, if not, be liable for no show fees. On June 25, 2018, applicant’s counsel reiterated that the applicant would only attend for one assessment and would refuse to provide the written confirmation requested.

9Travelers rescheduled the s. 44 physiatry assessment and provided notice. The applicant failed to attend the assessment. On December 19, 2018, Travelers again wrote to the applicant to advise her that it was holding her in non-compliance due to her failure to attend the assessments.

10On March 2, 2019, the applicant submitted an OCF-18 for a psychological assessment. Travelers advised that it required a s. 44 assessment on May 29, 2019 and also rescheduled the physiatry assessment for April 15, 2019. The applicant attended the s. 44 physiatry assessment but the assessor opined that the in-home OT assessment was needed to provide an opinion on the NEB test.

11Applicant’s counsel then requested that the psychological assessment be conducted via paper review, a request that Travelers denied. The applicant failed to attend the s. 44 psychological assessment scheduled. On November 6, 2019, the applicant then submitted an OCF-18 for an in-home OT assessment of her own. To date, the applicant has failed to attend the s. 44 in-home OT and psychological assessments.

12In addition, Travelers has made several s. 33 requests for documentation to support the applicant’s claims, including the clinical notes and records of her family physician, treating facility records, OHIP records, hospital records and prescription summaries. On July 15, 2019, Travelers again wrote to the applicant advising that her benefits were suspended due to s. 33 non-compliance. To date, Travelers asserts the applicant has still not produced the records of her family physician and that there was a 23-month delay in providing the OHIP summary and a 38-month delay in providing treatment and prescription records. The applicant applied to the Tribunal on December 19, 2019.

Sections 55, 44 and the parties’ positions

13Section 55(1)(2) of the Schedule provides that an applicant is statute-barred from proceeding with an application for benefits if the insurer has provided a notice in accordance with s. 44 that it requires an assessment, but the applicant has not complied. Section 44(5)(a) states that the notice should set out the medical and any other reasons for the assessment that would allow the applicant to make an informed decision on whether to attend or dispute the notice and should indicate whether attendance is required, the name and designation of the assessor and the date, time and location of the assessment.

14Travelers asserts that the applicant did not attend properly scheduled s. 44 assessments and, as a result, her application to the Tribunal should be statute-barred under s. 55(1)2. Travelers asserts that where the OCF-3 supported NEB entitlement and where it had limited medical documentation to support that the applicant suffered a complete inability to carry on a normal life, its first request for a s. 44 assessment was reasonable. Further, it submits that there was no prejudice to the applicant, that the applicant has only attended for one assessment in the over 3.5 years post-accident and that it has been deprived of examining the applicant and her claims during the relevant period of entitlement. Additionally, it submits that its notices were clear, unambiguous and provided sufficient information upon which the applicant could decided if she wanted to attend. Travelers submits that if there was somehow confusion with the notices, that the volume of correspondence between it and applicant’s counsel is evidence that there was no misunderstanding. Finally, Travelers submits that its unfulfilled s. 33 requests for documentation are reasonably required to assist it in determining the applicant’s eligibility for the NEB, the applicability of the MIG and the benefits claimed.

15In response, the applicant asserts that Travelers’ notices failed to comply with the mandatory requirements of s. 44(5) because they did not identify specific medical reasons why the applicant is required to attend the assessments, as stated in the Tribunal’s reconsideration decision M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT Reconsideration). She further relies on the Divisional Court’s decision in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 to support her position that Travelers’ “purported” notices contained boilerplate statements that did not provide a principled rationale to which she could respond and “she was unable to understand why she had to submit herself for the in-home OT and psychological assessments.” In addition, she submits that Travelers has not provided evidence that the s. 44 assessments were arranged “at its expense”, that is “chose” the regulated health professional or complied with s. 44(9)(2)(ii) by providing the contact information and necessary medical documentation in advance. Finally, she submits that procedural fairness entitles her to a full hearing on the merits and that compliance with s. 33 requests is not a proper preliminary issue before the Tribunal. She seeks $4,000 in costs.

The applicant is statute-barred from proceeding with her application due to her failure to attend properly scheduled s. 44 assessments

16On the evidence before the Tribunal, I agree with Travelers that its s. 44 assessment requests were reasonably required to determine the applicant’s eligibility to the benefits claimed, that its notices complied with the requirements of s. 44 and that the applicant has failed to attend properly scheduled assessments, meaning she is statute-barred from proceeding with her claims under s. 55.

17The applicant’s OCF-3 dated December 11, 2017 indicated that she suffered a complete inability to carry on a normal life as a result of the accident. At the time, the OCF-3 was the only documentation in Travelers’ possession supporting this claim. Where the OCF-3 only listed headaches, neck and back pain, anxiety and right knee pain, I agree with Travelers that more medical documentation or investigation was required to determine how these seemingly minor physical injuries would warrant removal from the MIG and payment of a NEB.

18Indeed, the March 27, 2018 notice stated that “[w]e have not received any objective medical evidence to support that you suffer a complete inability to carry on a normal life as a direct result of your motor vehicle accident related injuries. As such we are requesting you attend Insurer’s Examinations […] to determine your initial entitlement to the [NEB].” In my view, this notice easily satisfied the requirements of s. 44 as it provides a principled rationale based fairly on the applicant’s file because Travelers did not have sufficient information to make a determination based on the limited medical evidence available. The Schedule does not require the insurer to fabricate a medical reason to support a s. 44 assessment where the applicant has not provided medical evidence to support entitlement that is exclusively in their control. The applicant’s interpretation of Hedley is too narrow.²

19With regard to the notice of assessments, I find the initial February 16, 2018, and every notice thereafter, easily complies with the requirements of s. 44(5), as it cites to the previous letter of January 5, 2018 that stated an assessment would be scheduled via separate correspondence; states that the applicant was required to attend at one location for the physiatry assessment and that the in-home OT assessment would be conducted at her residence; includes the names of physiatrist Dr. Marchuk and OT Ms. Stanulis-Duz who would be conducting the assessments; provides the dates, times, locations and approximate durations of each assessment; states that an Arabic interpreter would be present; and the name of the clinic and its contact information. Recent notices reference older ones.

20While I am alive to the applicant’s submissions, on this evidence, it is difficult to find that Travelers somehow did not “choose” its regulated health professional, that it did not arrange the assessments “at its expense”, that the notice requirements of s. 44(5)(a) were not met or that the applicant—who was represented at all material times—was not provided with the contact information of the assessors in order to provide the necessary documentation in advance, pursuant to s. 44(9)(2)(ii). Indeed, when the applicant failed to attend multiple s. 44 assessments, Travelers requested that she provide written confirmation that she would attend and/or incur the no-show fee, which she refused. Further, it cannot be said that Travelers failed to choose its assessors where the applicant eventually attended for the physiatry assessment leading to a report and where the OT attended at her home for the assessment but was turned away at the door. In any event, the clinic listed on the notice is CBI, a licensed service provider under FSCO.

21The NEB test requires a comparison of the applicant’s pre- and post-accident activities in order to assess function. Where there was limited medical documentation to support that the applicant met the stringent complete inability test, I find the in-home OT assessment to be reasonably required to make a fair determination on the applicant’s entitlement to the specified benefit. At the time it was requested, Travelers had yet to conduct a single s. 44 assessment, so it cannot be said that its request was excessive or that the timing was inappropriate. Where its s. 33 requests also went unfulfilled by the applicant, I can only find that there was an entirely reasonable nexus between the examination requested and the applicant’s alleged injuries.³ Indeed, even after the applicant attended the physiatry assessment, a determination on NEB could not be fairly made until the in-home OT assessment was conducted. In this vein, I agree that the applicant’s failure to attend—combined with her failure to comply with valid s. 33 requests for information to support her claims—impeded Travelers’ ability to assess her.

22Further, I agree that the April 15, 2019 notice to the applicant regarding the OCF-18 for a psychological assessment meets the requirements of s. 44 as it states that “there is no medical documentation on file to support that your injuries are not minor in nature and not treatable within the [MIG]. […] Therefore, we have determined that there is insufficient medical documentation and information to conclude that your injuries fall outside the [MIG].” The letter also indicates that Travelers had previously requested an OCF-5 (Permission to Disclose Health Information) be completed by the applicant’s family physician but that it had not been received. Here, it is well-settled that it is the applicant’s burden to prove that they sustained impairments that are outside of the MIG. Where the applicant had provided limited medical evidence and where applicant’s counsel then proposed that the assessment be conducted via paper review, it cannot be said that the initial request was not reasonably required or that the applicant was confused by Travelers’ rationale. Indeed, any lack of medical specificity in the notice can be traced to the applicant’s failure to provide the requested medical documentation in support of her accident-related impairment claims.

23In any event, while I find nothing improper about the notices, I also agree with Travelers that any perceived deficiency is easily cured by the volume of correspondence between Travelers and applicant’s counsel post-accident. While this is not a determinative factor, there are multiple email exchanges and letters in evidence where the applicant agreed to attend assessments, acknowledged her failure to attend, requested that assessments be rescheduled, requested that assessments be conducted via paper review, etc. In nearly every exchange, Travelers’ reasons supporting the s. 44 assessments are consistently outlined or reiterated. In many exchanges, Travelers reiterates that the applicant has not provided requested documentation. In this vein, I find it cannot be said that the applicant was confused or unaware of the rationale for the s. 44 assessments. Rather, on balance, I find it much more likely that the applicant was actively impeding Travelers’ right to reasonably evaluate her claim while simultaneously making claims for six assessments of her own. Accordingly, pursuant to s. 55(1)2, I find the applicant is statute-barred from proceeding with her application as she failed to attend properly scheduled s. 44 assessments.

24For completeness, I agree with the applicant that Travelers’ s. 33(6) submissions were not properly before the Tribunal as a preliminary issue and I make no determination on same as a result. In submissions, the applicant also sought her costs in the amount of $4,000, pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure. She submits that Travelers should be reprimanded for bringing the preliminary issue that has delayed having her matter heard. Putting aside that Travelers was successful in this preliminary issue hearing and that the Tribunal’s Common Rules cap costs orders at $1,000, I decline the applicant’s request, as I find no evidence that Travelers acted unreasonably, frivolously, vexatiously or in bad faith.

ORDER

25The applicant is statute-barred from proceeding with her application for NEB and the psychological OCF-18 under s. 55(1)2 of the Schedule due to her failure to attend at properly scheduled s. 44 assessments.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2See, for e.g., Mayers v. Aviva Insurance Company, 2020 CanLII 101806 (ON LAT).
3. 3See: Al-Simasawai v. Wawanesa (FSCO A05-002737)