McBeth v. Allstate Insurance, 2022 CanLII 117096

McBeth v. Allstate Insurance, 2022 CanLII 117096

Citation: McBeth v. Allstate Insurance, 2022 ONLAT 21-011473/AABS - PI

Licence Appeal Tribunal File Number: 21-011473/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:

Cody McBeth

Applicant

and

Allstate Insurance

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Cody McBeth, Applicant Chris Jackson, Accident Benefits Manager

Megan M. Johnston, Counsel

For the Respondent:

Rita Filippo, Adjuster Kevin Mitchell, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on November 24, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2On October 3, 2022, the respondent filed a notice of motion with the Tribunal seeking an order to bar the applicant from proceeding with his claim for the income replacement benefit due to the failure to attend the insurer’s examinations under section 44 of the Schedule.

ISSUE IN DISPUTE

3The issue to be decided in this hearing is:

1. Is the applicant barred from proceeding with his claim for the income replacement benefit as he failed to submit to an insurer’s examination (IEs) under section 44 of the Schedule?

BACKGROUND

4The applicant was involved in the subject accident on November 24, 2018. On July 20, 2021, the Respondent issued Notices of Examination by Insurer (“NOEs”) for five IEs. The IEs set out in the confirmation of service(s) are as follows:

1. August 5, 2021: Vocational with TSA with Ms. Ruth Billet, Vocational Rehab Specialist
2. August 9, 2021: Functional Abilities Evaluation (FAE) with Mr. Robert Bullard, Kinesiologist
3. August 19, 2021: Psychology Assessment with Dr. Amena Syed, Neuropsychologist
4. August 23, 2021: Physical Medicine and Rehabilitation Specialist Assessment with Dr. Sharriff Dessouki, Physical Medicine and Rehabilitation MD; and
5. October 8, 2021: Neurology Assessment with Dr. Yael Friendman, Neurologist.

5In part 2 of the NOE, it was noted that the examination was for “income replacement benefits, medical and rehabilitation benefits; [sic] post-104 weeks disability.” The reason and description of the examination is as follows:

OCF 18s dtd [sic] October 30, 20 $1,503.72 and Nov 5, 20 $2,988.53

Upon further review of your Accident Benefit file, we noted that it is now more than 104 weeks since your claim for an Income Replacement Benefit Disability Benefit. Please be advises [sic] that pursuant to section 6(2.b) of the Statutory Accident Benefit Schedule (SABS) the test of disability changed from substantial to complete inability to complete you [sic] task of employment.

To have a better understanding of your current injuries, progress and functional status, the insurer my [sic] request and [sic] Insurer’s Examination in accordance with Section 37 (1,b): 37. (1) If an insurer wishes to determine an insured person is still entitled to a specified benefit, the insurer may, but not more often than is reasonably necessary, (b) notify the insured person that the insurer requires an examination under section 44.

We take this opportunity to also address the OCF-18 dated October [sic] dated October 30, 2020 for $1503.72 and OCF-18 dated November 5, 2020 for $2988.53 for physical therapy.

We request that you please provide us with any medical information to obtain and [sic] objective examination. If the attendance of the insured person is required, the insured person and the insurer shall, not later than five business days before the day scheduled for the examination, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person’s medical condition.

We request an in-person examination.

6The applicant’s legal representative sent a letter to the respondent on July 20, 2021. He raised concerns with the contents of the notice. It was raised that the respondent did not provide proper “medical and other reasons”. He inquired why a neurology assessment and physiatry assessment were reasonably necessary as the applicant had previously attended them in the previous year. Furthermore, he asked why all of the assessments were reasonably necessary. The applicant’s legal representative informed the respondent that it was his position that the respondent did not provide sufficient notice and that the applicant would not be attending the IEs.

7The applicant’s legal representative followed up with the respondent on August 17, 2021 and August 19, 2021 regarding his inquiries. The letter dated August 19, 2021 from the applicant’s legal representative informed the respondent that he is yet to receive a response to the July 20, 2021 letter and that the applicant would not be attending the assessments until he is provided with the requested information.

8On August 18, 2021, the respondent sent another NOE with a confirmation of services similar to the first one that was received. None of the concerns that were raised by the applicant were addressed in these documents.

9The respondent sent a letter on August 27, 2021. The respondent provided some information to the applicant’s legal representative but did not answer all of the questions. On August 30, 2021, the applicant’s legal representative wrote to the adjuster and outlined his concerns about her response.

10The matter proceeded to a case conference before Adjudicator Lobu on July 11, 2022. The respondent raised a preliminary issue and was informed that he should file a notice of motion. The respondent filed a notice of motion on September 15, 2022.

PARTIES’ POSITIONS

11The applicant submitted that for the five noted insurer examinations, the respondent did not satisfy its obligation under s.44(5) of the SABS to provide “medical and any other reasons for the examination”. The language in the NOEs consistently contained boilerplate statements lacking any specific medical or other reasons. The respondent failed to reply to the multiple letters prior to the assessment date.

12The applicant submitted that the respondent has not met its onus to identify why it believes the requested assessments are reasonably necessary. The respondent has completed psychological, neurological, and physical examinations. The respondent has completed enough IEs to allow them to complete a multidisciplinary assessment report, yet continues to push for more, including the five noted insurer examinations, without providing proper justification.

13The respondent submitted that the applicant should not be permitted to dispute the substantive issues in the application because he failed to attend the section 44 assessments. The respondent is also of the view that the notices were proper and in compliance with the Schedule. Furthermore, the IEs were reasonably necessary. The respondent was entitled to reassess the applicant pursuant to section 37(1)(b) of the Schedule. A year had passed since the last IE and it was now beyond the 104-week mark. The respondent has suffered prejudice to conduct a timely assessment of the applicant’s ongoing entitlement to the IRB.

LAW

14Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

15The requirements for a notice of examination set out in s. 44(5) of the Schedule are:

1. If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out, a) the medical and any other reasons for the examination; b) whether the attendance of the insured person is required at the examination; c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

16Section 44(9)2. sets out the rules for an in-person IE:

The following rules apply in respect of the examination: … 2. If the attendance of the insured person is required, i. the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person, ii. the insured person and the insurer shall, not later than five business days before the day scheduled for the examination, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person’s medical condition, and iii. the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.

17Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.

18Taking all of the above provisions, the Schedule is clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance. To be clear, the respondent must first prove that a Notice of Examination complies with s. 44(5) of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55.

Is the notice of examination in compliance with s. 44(5)?

19It is well-settled law that the insurer’s medical and any other reasons should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. The “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 insurer’s decision at issue. A claim cannot be barred if the respondent failed to provide proper notice as per s. 44(5) of the Schedule.

20In my view, I am not satisfied that the NOE dated July 20, 2021 complied with the requirements under section 44(5) of the Schedule. The reasons do not mention the applicant’s conditions, which form the basis for the insurer’s decision. Nor does it identify the information about the insured’s conditions that the respondent requires but does not have. I find that the reasons are vague and lack specific details. As such, I find that the NOE dated July 20, 2021 was not compliant with section 44(5) of the Schedule.

21I also find that the subsequent NOEs dated August 18, 2021 were not compliant with section 44(5) of the Schedule as they included the same wording from the first notice.

22Moreover, when the respondent was given a chance to remedy the lack of particulars in response to the applicant’s legal representative’s inquiry, its representative responded by not answering the applicant’s legal representative’s questions. For example, her response to the lack of “medical and other reasons” inquiry is as follows:

Response: I would like to first ask. What part of the case law are you referring too[sic]?

Review of the Explanation of Benefit dated July 13, 2021 indicates we have outlined the rational [sic] for our request as per SABS section (2,b) with the definition attached. A reviewed response to medical reasons will be provided under a separate cover. However, I do believe that we have satisfied the “other” reasons component. Please find attached the EOB for reference

23In my view, this is a non-response. The respondent’s letter does not provide any insight or explanation. This issue could have been remedied by the respondent’s representative taking the time to explain the “medical and other reasons”. I do not agree with her assertion that the EOB indicates the rationale. I certainly did not see it. Moreover, the EOB is not the notice. The notice itself must contain the “medical and any other reasons.”

24Moreover, I find that the respondent’s representative took some time to respond to the applicant’s legal representative despite the fact that there were follow up letters. The costs that the respondent incurred as a result of the non-attendance at the IE could have been averted if the applicant’s legal representative had been provided with a meaningful response to his inquiries in a timely manner. This would have allowed the applicant to make an informed decision whether to attend the IE. The respondent was fully aware that the applicant was not going to attend until he received an explanation.

25As I have determined that the notices were deficient, it is not necessary for me to do an analysis as to whether or not the IEs were reasonably necessary and whether the applicant had a reasonable explanation for his non-attendance.

26For the reasons above, I find that the applicant is not precluded from applying to the Tribunal for failing to attend the IE.

COSTS

27The applicant submitted that the respondent’s actions in this matter hindered the effectiveness and efficiency of the Tribunal. As such, the applicant submits that this gives rise to a fair request for costs in this matter.

28The respondent submitted that applicant’s behavior has interfered with the Tribunal’s ability to carry out a fair, efficient and effective process.

29I find neither party has not met the test set out in Rule 19. In the absence of reasons and particulars, I am unable to award costs to either party. In any event, I find the actions of both parties are not sufficient to award costs. The test to find bad faith and unreasonable, frivolous, vexatious behaviour is very high. Neither party’s behaviour has met this threshold.

ORDER

30The applicant may proceed before the Tribunal with his claim for the income replacement benefit from the time period of August 21, 2021 to ongoing.