Licence Appeal Tribunal File Number: 21-007172/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:
Natalia Francis
Applicant
and
Northbridge General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Natalia Francis, Applicant Ken Singh, Counsel
For the Respondent:
Kaitlyn Witmeyer, Adjuster, Northbridge Linda Kiley, Counsel
Heard by written submissions:
OVERVIEW
1This proceeding concerns a dispute between an insured person (the "applicant") and an insurer (the "respondent") about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule") arising out of a motor vehicle accident on July 27, 2020.
ISSUE IN DISPUTE
2The respondent raised a preliminary issue covering all of the substantive issues in dispute listed in paragraph 2 of Vice-Chair Shapiro's and Adjudicator Ahmad's Case Conference Report and Order dated September 13, 2022. Subsequently, the respondent filed a motion with the Tribunal on November 9, 2022. The preliminary issue that I must decide is as follows:
i. Is the applicant barred from proceeding with her application for failure to submit to an insurer's examination under section 44 of the Schedule?
PARTIES' POSITIONS
3The respondent submitted the applicant has not attended the insurer examinations ('IEs') despite numerous requests. The IEs were "reasonably necessary" pursuant to s. 44(1) of the Schedule. The applicant is statutorily required to attend a properly scheduled IE and she failed to comply. She did not provide a reasonable excuse for her non-attendance which had the effect of frustrating Zenith's ability to adjust her claim. Moreover, the notices provided by Zenith and all accompanying and subsequent documentation provided to the applicant and her counsel were sufficiently particularized to allow the applicant to make a fully informed decision to either accept or dispute the notice. The onus is on the applicant to demonstrate that she was confused or misled by the notice or was unable to understand it.
4The applicant submitted that the respondent failed to provide sufficient medical reasons for the IE assessments, in accordance with s.44(5) of the Schedule. It is not sufficient for the respondent to simply and vaguely state that "there are no compelling reasons to take the Applicant out of the MIG". The reasons provided for the IEs were generic and boilerplate with no reference to the applicant's conditions.
LAW
5Section 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.
6The requirements for a notice of examination set out in s. 44(5) of the Schedule are:
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.
7Section 44(9)2. sets out the rules for an in-person IE:
The following rules apply in respect of the examination: …
- 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.
8Section 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.
9Taking 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.
10Although not binding, I am also guided by the principles in M.B. v. Aviva Insurance Company, 2017 CanLII 87160 (ON LAT). At paragraph 26, then-Executive Chair Lamoureux addressed the standard for an insurer's reasons:
In my view, 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. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer's "medical and any other reasons" should, at the very least, 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. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. 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.
11The Executive Chair also highlighted that an insured's claim cannot be barred if the respondent failed to provide proper notice as per s. 44(5) of the Schedule. In addition, the notice requirements set out in s. 44(5) should be strictly construed and the insurer's notice should be closely examined to ensure it complies. If the respondent's notice does not comply with s. 44(5), an insurer cannot rely on the severe remedy available in s. 55 of the Schedule to bar an insured's application.
Are the notices of examination in compliance with s. 44(5)?
12The next stage of my analysis will address the notices of examination for the substantive issues set out in Vice-Chair Shapiro's and Adjudicator Ahmad's order dated September 13, 2022.
Notice of examination for the attendant care benefits of $3,000.00 per month from November 20, 2020 to date and ongoing
13I find that the respondent did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. The respondent has provided a detailed explanation for why the applicant is not entitled to attendant care benefits. However, there is no mention made of the applicant's medical condition or the specific provision of the Schedule that it relied upon to deny benefits. The adjuster's log notes do document various medical conditions that the respondent was aware of. This should have been noted in the notice. Therefore, I find this notice to be deficient.
Notice of examination for occupational therapy services in the amount of $3,731.50
14I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. The respondent has provided a detailed explanation for why the applicant is not entitled to occupational therapy services. However, the notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon. Therefore, I find this notice to be deficient.
Notice of examination for psychological services in the amount of $4,975.00
15I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. The reasons identify the fact that no psychological impairments were listed. The applicant's physical injury is mentioned. The respondent reviewed the medical evidence did not find any psychological impairments. Nor is there any pre-existing condition that would remove her from the MIG and affect her recovery. The notice also includes the location/date/time of the insurer examination. The assessor's name, designation and speciality are set out in the notice.
16However, it does not mention the section of the Schedule upon which it relies upon. It was quite clear in M.B. the reasons should include the section of the Schedule. In my view, this would allow the applicant to see what sections of the Schedule the respondent relied upon in coming to their decision. As such, I find that the notice is not compliant.
Notice of examination for occupational therapy services in the amount of $1,154.65
17I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. The applicant has not provided compelling evidence that her injuries fall outside of the MIG. The respondent reviewed the evidence and found there isn't a need for safety equipment or food subscription services. However, the notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon to deny benefits.
Notice of examination for occupational therapy services in the amount of $1,700.00.
18I find that the notice did not comply with section 44(5). The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon to deny benefits.
Notice of examination for occupational therapy services in the amount of $5,797.68
19I find that the first notice dated March 30, 2021 is deficient. It does not mention the benefit in dispute or the amount. It is quite unclear as to what this pertains to although I note that in the respondent's submissions, this pertains to the treatment plan in the amount of $5,797.68. I find the reasons to be vague.
20I also find that the second notice dated June 16, 2021 is not compliant. The notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon to deny benefits.
Notice of examination for occupational therapy services in the amount of $3,492.00
21I find the notice does not comply with section 44(5). The notice notes the type of examination. It refers to the benefit in dispute. The respondent reviewed the evidence and found that there is insufficient evidence that suggests that the treatment is reasonable and necessary. However, the notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon to deny benefits.
OCF-18 in the amount of $1,062.00 for dental services, proposed by Kingsway Oral Surgery in a plan dated October 27, 2020
22Neither of the parties raised this treatment plan in their submissions. Nor could I find anything in the evidence that addresses non-attendance at an IE. Therefore, I am not considering whether this treatment plan is statute-barred.
Notice of examination for occupational therapy assessment in the amount of $2,200.00
23I find the notice does not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. The respondent reviewed the evidence and found that there is insufficient evidence that her injuries are outside of the MIG and that she has not provided any compelling evidence otherwise. However, the notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon to deny benefits. Therefore, I find this notice to be deficient.
The OCF-18 in the amount of $4,280.00 for Mental Health and Neuropsychological Assessments proposed by Wings Neuro Rehab in a plan dated February 25, 2021
24I note that this treatment plan was approved by the respondent. As such, I am not considering it in my analysis.
Notice of examination for a Dietician Assessment in the amount of $2,200.00
25I find that the notice does not comply with section 44(5) of the Schedule. The respondent provided reasons such as the fact that there is no supporting medical evidence to suggest that a nutritional dietary assessment is a reasonable and necessary expense arising from the subject accident. It is also noted that an MRI (Neuro) examination was conducted and it was determined that the right and left temporomandibular joints and articular discs are normal. There was no indication of any anomalies. The assessor's name, designation and speciality are set out in the notice. However, the notice does not include any of the sections of the Schedule upon which it relied upon. Therefore, I find the notice to be deficient.
ORDER
26Save and except for the issue of the OCF-18 for which I made no decision, the preliminary issue motion is dismissed in its entirety.
Released: December 14, 2022
Tavlin Kaur
Adjudicator