20-011288/AABS - PI

Licence Appeal Tribunal File Number: 20-011288/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:

Oyindamola Sodeinde

Applicant

and

Intact Insurance Company

Respondent

PRELIMNARY ISSUE DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Nicholas Mester, Counsel

For the Respondent:

Jane Lo, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, O.S., was involved in an automobile accident on August 1, 2017, and sought benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Intact denied the disputed benefits and raises preliminary issues of whether O.S. is barred from proceeding with her application for failure to attend properly scheduled insurer examinations (“IEs”); whether the claim for attendant care benefits (“ACBs”) was raised prematurely; whether O.S. is time-barred from disputing the denial of the income replacement benefit (“IRB) pursuant to s. 56 of the Schedule; and whether O.S. is precluded from claiming IRBs prior to submitting a Disability Certificate (OCF-3).

PRELIMINARY ISSUES IN DSIPUTE

2The preliminary issues to be determined are as follows:

a. Is O.S. barred from proceeding with her application pursuant to s. 44 of the Schedule because she failed to attend properly scheduled insurer examinations?

b. Is O.S.’s application for ACBs raised prematurely?

c. Is O.S. time barred from disputing Intact’s decision to deny IRBs pursuant to s. 56 of the Schedule?

d. Is O.S. precluded from claiming IRBs prior to the submission of a completed OCF-3?

FINDING

3O.S. is not barred from proceeding with her application as it pertains to the October 4, 2017 OCF-18.

4However, she is barred from proceeding with her application pertaining to the April 2, 2018, the November 27, 2018, a second November 27, 2018 and a February 14, 2019 OCF-18s for failing to attend properly scheduled s. 44 IEs.

5O.S. has not prematurely raised a claim for ACBs.

6O.S. is time barred from disputing Intact’s decision to deny IRBs.

7O.S. is precluded from claiming IRBs for the period that predates the OCF-3.

8The parties shall contact the Tribunal within 30 days of the release of this preliminary issue decision to schedule a resumption of the case conference.

ANALYSIS

Is the October 4, 2017 OCF-18 statute-barred?

9Section 55(1)2 of the Schedule states that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44 but the insured person has failed to comply with the request.

10Section 44(1) sets out that an insurer may require an insured person to be examined by one or more persons who are regulated health professionals or experts in vocational rehabilitation, chosen by the insurer, to determine entitlement to a benefit but not more often than is reasonably necessary. Under s. 44(5), a notice must state the medical and any other reasons for the examination, whether the insured’s attendance is required, the name, any relevant regulated profession, title and designation of the person conducting IE and, if the insured’s attendance is required, the date, time, and location of same.

October 4, 2017 OCF-18

11Regarding the October 4, 2017 OCF-18, on review of the parties’ evidence and submissions, there is no dispute that O.S. attended an IE on October 16, 2017 with general practitioner, Dr. Mula, nor is there any dispute that Intact provided proper notice under s. 44. Instead, the parties’ arguments centre on whether the denial complied with s. 38(8) of the Schedule. On this part of the first preliminary issue, I conclude that O.S. is not barred from proceeding to the Tribunal pursuant to s. 55(1)2 for this OCF-18.

Other OCF-18s

12Having said the above, Intact’s preliminary issue submissions also argue that O.S. should be statute-barred under s. 55(1)2 for her failure to attend IEs regarding OCF-18s for: April 2, 2018 (for occupational therapy services); November 27, 2018 (for an occupational therapy assessment); a second November 27, 2018 (for an occupational therapy assessment); and a February 14, 2019 (for assistive devices). As to whether the IE notices for those are proper and compliant with the Schedule, I find that they comply with s. 44(5), in that the notices provide the medical and other reasons for the IEs, the notices explain the purpose of the examinations, the identification and credentials of the examiners, that O.S.’s attendance is required with the date, time and location, and that failure to attend can result in a ban from proceeding with her claims for benefits in accordance with s. 55 of the Schedule. O.S.’s submissions do not address these IEs nor does she offer a reasonable explanation for her non-compliance. I therefore find she is statute-barred in relation to these four OCF-18s. Having heard no submissions from O.S., I decline to exercise my discretion to permit her to proceed with her application in respect of those four OCF-18s pursuant to ss. 55(2) and (3), despite her non-compliance.

Is the claim for ACBs premature?

13Intact argues that O.S. is premature in applying to the Tribunal to adjudicate the question of her ACB claim. Additionally, Intact submits that in a November 12, 2020 notice, it advised O.S. that she was required to attend s. 44 IEs to determine if she was entitled to ACBs. In its submissions, Intact states that the s. 44 IEs were scheduled and that O.S. failed to attend. It did not raise the issue of whether O.S. is also statute-barred under s. 55(1)2. from pursuing her ACB on this basis, however, and I make no decision on that point.

14Rather, Intact submits that it has not been provided the opportunity to conduct its IEs, in order to make a determination as to whether O.S. is entitled to ACBs. In other words, they have not agreed to pay for the benefit nor denied the benefit. In short, Intact submits that there is no denial and, therefore no dispute. O.S. provided no submissions on the issue and has therefore not contested Intact’s position. However, as Intact has raised this preliminary issue, it bears the burden of satisfying me of its argument. For the reasons that follow, I disagree with Intact.

15Under s. 42(1), an application for ACBs must be submitted in an assessment of attendant care needs (“Form 1”).

16Under s. 42(3), the insurer has only two options upon receipt of a Form 1: agree to pay for the ACB or deny it (whether in whole or in part). If the insurer disagrees with any part of the Form 1, then it must give notice to the applicant which ACB expenses it does not agree to pay for, and the medical and any other reasons for its decision.

17Section 42(4) sets out that a notice under subsection (3) may require the insured to undergo an examination under s. 44 if the insurer has not agreed to pay all expenses described in the Form 1.

18In this case, Intact has clearly not agreed that O.S. is entitled to an ACB and, naturally, does not pay for the ACB claimed by O.S.; rather, it desires to conduct an IE to determine whether O.S.’ claim for ACBs is meritorious and, if so, the amount. However, in a clear reading of s. 42(3), I must conclude that there is a “dispute” about this issue that invites the Tribunal’s jurisdiction to adjudicate the ACB claim.

19Section 280(2) of the Insurance Act deals with the Tribunal’s jurisdiction to resolve a dispute described in s. 280(1), which clarifies it as “with respect to the resolution of disputes in respect of a person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.” Accordingly, an application before the Tribunal must satisfy the provisions set out in s. 280 (1)—in relevant part here, there must be a benefit in dispute. Although Intact has not assessed O.S.’ entitlement or quantum to the benefit, it has not agreed to pay the benefit and it has also exercised its right to schedule IEs. The elements of a “dispute” within the meaning of s. 280(1) are present, as O.S.’ claim for ACB has been denied by Intact’s response to the Form 1.

20I find that O.S.’ application to this Tribunal to resolve the question about her claim for ACBs is a dispute within the Tribunal’s jurisdiction, and therefore not filed prematurely. O.S. may pursue her claim for the ACB, providing she attends all IEs that have been properly scheduled in accordance with s. 44 of the Schedule. I decline to strike this ACB claim for prematurity or lack of jurisdiction.

Is O.S. statute barred from disputing Intact’s denial of IRBs?

21Intact submits that the IRB was suspended effective March 15, 2018 following O.S.’s non-compliance with s. 33, to provide information. Under s. 56 of the Schedule, the limitation period of two years, would be March 15, 2020. On the evidence, O.S. confirmed IRB denials of February 22, 2018 and March 16, 2018. At the latest, the two-year mark would be March 16, 2020 (noting that March 15, 2020 falls on a Sunday, and therefore the applicant would have the next business day to file her appeal with this Tribunal: see, ss. 89(1)-(5) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F; and ss. 64(24)-(26) of the Schedule).

22As a result of the COVID pandemic, limitation periods were suspended effective Monday, March 16, 2020 through Monday, September 14, 2020, inclusively, via Regulations 73/20 and 457/20 made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17. The limitation period would have therefore resumed on Tuesday, September 15, 2020. I find that the O.S. applied to the Tribunal on September 28, 2020. Even considering the period of suspension, O.S. filed her application to this Tribunal outside of the limitation period.

23O.S. provided no submissions on the issue and did not contest Intact’s position, nor did she make submissions requesting the Tribunal to exercise its discretion under s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G.

24I find that O.S. is statute barred from pursuing her claim for IRBs, in accordance with s. 56 of the Schedule.

Is O.S. precluded from claiming IRBs for the period predating her OCF-3?

25Section 36(2) of the Schedule provides that an applicant seeking IRBs shall submit a completed disability certificate with his or her application. Section 36(3) sets out that an applicant who fails to submit a completed disability certificate is not entitled to IRBs for any period before the completed disability certificate is submitted.

26I find that O.S. is not entitled to IRBs for any period prior to the submission of the disability certificate as required by the Schedule.

27Intact addressed the issue in its submissions, and rightly took the position that there is no entitlement to payment of the IRB for any period predating the disability certificate. The language in s. 36(3) is compulsory and there is no exception. O.S. did not provide any submissions on the issue and did not contest Intact’s position.

28Even if I am incorrect as to my finding on the submission of the disability certificate, O.S. has submitted her claim for IRBs to the Tribunal after the expiry of the two-year limitation period and is precluded from advancing a claim for the specified benefit.

DISCUSSION

Additional Submissions

29On November 1, 2022, the Superior Court released a decision, Aviva General Insurance Company v. Catic, 2022 ONSC 6000, (“Catic”). As a result of the decision, I requested additional submissions regarding the findings in Catic.

30In Catic, the Court determined that where there is non-compliance with s. 38(8) of the Schedule, an insurer is required to “pay for all of the items listed in the subject treatment plan...only if they are incurred and only for the period during which any denial notice remains outstanding.”

31On review of the additional submissions, I find that the s. 38 issue should be heard by the hearing adjudicator dealing with the substantive issues. I decline to make any finding regarding s. 38.

CONCLUSION

32O.S. is not precluded from her claim for the October 4, 2017 as, the IE notice meets the Schedule’s requirements, and she complied with the IE request.

33O.S. is in non-compliance for her failure to attend IEs regarding the OCF-18s dated April 2, 2018, a November 27, 2018, a second November 27, 2018 and a February 14, 2019. She is statute-barred by s. 55(1)2 and I decline to exercise my discretion to permit her application pursuant to s. 55(2) and (3).

34O.S.’ application to this Tribunal to resolve the question of ACBs is not premature as it is a “dispute” within the meaning of the s. 280 jurisdiction of the Tribunal.

35O.S. is time barred from disputing Intact’s decision to deny IRBs.

36O.S. is precluded from claiming IRBs for the period that predates the OCF-3.

37The parties shall contact the Tribunal within 30 days of the release of this preliminary issue decision to schedule a resumption of the case conference in order to address the substantive issues in dispute.

Released: December 6, 2022

Derek Grant

Adjudicator```