Licence Appeal Tribunal File Number: 20-012962/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:
Nuha Bachour
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Eric Winkworth, Counsel
For the Respondent: Sharon C. Dagan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Marwan Chabou was fatally struck by a vehicle on January 24, 2018. His spouse, Nuha Bachor, (“the Applicant”), developed psychological injuries following the accident and the death of her husband and sought benefits from The Dominion of Canada General Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016), (the “Schedule”). The Applicant was denied certain benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issue to be decided is:
- Is the Applicant barred from proceeding to a hearing for the following benefits because she failed to attend insurer’s examinations, (“IEs”)?
i. ACBs in the amount of $4,135.74 per month for the period from August 15, 2019 to June 17, 2020?
ii. ACBs in the amount of $6,882.27 per month for the period from May 29, 2020 to-date and ongoing?
iii. A treatment and assessment plan dated May 4, 2020 by Innovative Occupational Therapy Services for an attendant care assessment in the amount of $2,200.00?
RESULT
3I find that the Applicant is barred form proceeding to a hearing for the benefits listed above because she failed to attend IEs that were scheduled in compliance with section 44 of the Schedule.
PROCEDURAL ISSUES
4Two procedural issues arose during the written hearing. First, the Respondent submits that the Applicant exceeded the page length for submissions and asks that the submissions beyond the page limit be struck. Second, the Applicant submits that the Respondent raised new issues in Reply, which is a violation of procedural fairness.
5I agree with the Respondent and find that the Applicant’s submissions exceeded the page limit. Thus, the submissions are not compliant with the Tribunal Order. However, I will include the non-compliant submissions and assign them the appropriate weight. This should not be viewed as acceptance of a breach of the previous Tribunal Order.
6Rule 9.1 of the Tribunal’s Common Rules of Practice & Procedure (“Rules”) provides that the Tribunal may order parties to provide documents or particulars as it considers necessary for a full and satisfactory understanding of the issues in the proceeding. Rule 9.4 provides that the Tribunal has discretion as to whether it will include the particulars or document in the hearing record. Parties shall file a Notice of Motion and comply with Rule 15 if they wish to increase the page limits on submissions.
7In addition, I note that the Applicant’s submissions include footnotes which, on more than one occasion, occupy more than half the page. While this practice is compliant with the Rules, it does not permit the Applicant to exceed the page limit on submissions.
8I am not persuaded that the Respondent participated in case splitting, as submitted by the Applicant, by raising new issues in Reply. My review of the submissions leads me to conclude that the Respondent’s Reply submissions were in response to issues raised by the Applicant. Nevertheless, the Applicant was permitted a sur-reply to address the Respondent’s Reply submissions and I have considered those submissions, thus remedying any potential violation of procedural fairness pursuant to Rule 3.1.
BACKGROUND
9The Applicant developed psychological injuries following her husband’s death and claimed entitlement to ACBs and medical benefits as a result.
10In response to the Applicant’s claims, the Respondent sought the Applicant’s participation in IEs and scheduled them under the disciplines of psychology and occupational therapy. Despite the request for IEs, the Respondent agreed to pay for ACBs incurred during the period from the date of the Form 1 – September 19, 2019 – pending receipt of the IE reports, up to the monetary limit for non-catastrophic injuries, of $3,000.00 per month.
11As far as I am aware, the Applicant never attended the aforementioned IEs or any subsequent IEs and the Respondent has paid nothing towards ACBs to-date.
12The Applicant applied to the Tribunal to resolve the dispute over her entitlement to ACBs. In response, the Respondent raised a preliminary issue and submits that, pursuant to section 55(1)2 of the Schedule, the Applicant is barred from proceeding with her application because she failed to attend the IEs it arranged.
13The Applicant contends that she should be allowed to proceed with her application because the Respondent’s IE notices are deficient. The Respondent maintains that the notices provided are compliant with the Schedule and insists that the Applicant is non-compliant with section 44 of the Schedule and is barred from proceeding with her Application pursuant to section 55(1)(2) of the Schedule.
14For the following reasons, I find that the Applicant failed to attend properly scheduled IEs and is barred from proceeding with her application, pursuant to section 55(1)(2) of the Schedule. Further, I chose not to exercise my discretion to permit the application, with or without imposing any terms or conditions.
ANALYSIS
ACBs for the period starting August 15, 2019
15The Applicant initiated a claim for ACBs on September 19, 2019 when she submitted a Form 1 by J. Moy, occupational therapist, dated September 19, 2019 and an In-home Assessment Report by occupational therapist Moy, dated August 22, 2019. Pursuant to section 42 of the Schedule, an application for ACBs must be in the form of and contain the information required to be provided in the version of the document entitled “Assessment of Attendant Care Needs”, (“Form 1”), in connection with the claim. The application for ACBs must also be prepared by an occupational therapist or a registered nurse.
16Pursuant to section 42(3) of the Schedule, the Respondent shall, within ten business days, give the Applicant notice that specifies the expenses described in the Form 1 that it agrees to pay, the expenses it refuses to pay, and the medical and other reasons for the decision. Pursuant to section 42(4), the Respondent’s notice may require the Applicant to undergo an examination under section 44 of the Schedule if it has not agreed to pay all the expenses described in the Form 1.
17I find that the Respondent’s letter dated September 23, 2019 is compliant with sections 42(3) and 42(4) of the Schedule. The letter confirms that the Respondent refuses to pay the amount claimed, but will pay for ACB expenses incurred, up to the non-catastrophic policy limit of $3,000.00 per month, pending the outcome of the IEs. The letter notes that the details regarding the IEs shall be provided shortly under a separate cover. Lastly, the letter includes the medical and other reasons for the Respondent’s decision.
18The September 23, 2019 letter includes valid medical and other reasons. The Respondent states in the letter that it is unable to approve the Form 1 and requires IEs, but will pay ACBs pending receipt of the IE report. The medical and other reasons provided in the letter are as follows:
In the In-Home Report from Mr. Moy dated August 22, 2019, he has indicated on page 5 that you are independent with your personal care tasks, you are not at risk for falls and that you did not require 24-hour care. However, the majority of attendant care needs listed on the accompanying Form 1 appear to be related to these needs.
Further, you’ve indicated to Mr. Moy that you are “feeling better” now that an increase of your medication has been made.
There is no medical documentation on file to indicate physical impairments sustained as a result of this accident that would support the need for attendant care assistance.
19The Applicant disagreed with the medical and other reasons for the IE, noted in the Respondent’s September 23, 2019 letter. To her, the Respondent’s reasons are “deceptive and/or completely unrelated to the assessment of the Applicant’s (ACB) needs.” Counsel for the Applicant wrote to the Respondent on October 8, 2019 to voice the concerns. The Respondent replied on October 21, 2019 and made direct reference to information in the report that led it to it’s decision. Additional letters were exchanged whereby the parties reiterated their positions on whether the IE notices were compliant with the Schedule.
20I find that the Respondent’s medical and other reasons for requesting IEs were satisfactory. The Respondent’s reasons reflect the evidence provided by the time the decision had to be made. The Respondent is not a medical professional and is permitted to seek additional information through IEs to guide it’s adjusting of the Applicant’s claims. Whether the Respondent’s medical and other reasons are proven to be inaccurate or wrong is irrelevant because sections 42(3) and 42(4) of the Schedule do not require them to provide a correct diagnosis or prognosis – it just requires medical and other reasons. The omission of the requirement to provide a correct diagnosis or prognosis is reasonable considering that IEs, like assessments pursuant to section 25 of the Schedule, are speculative in nature as they seek information on the insured person’s condition. Nevertheless, the Tribunal has adopted a safeguard for insured persons from overreaching IE requests, in that a reasonable nexus between the examinations requested and the Applicant’s injuries is required to validate the IE request, which will be explained later.
21Section 44 of the Schedule addresses the Respondent’s ability to seek IEs, which includes certain conditions that the respondent must adhere to when exercising it’s right to IEs. It permits the Respondent to require the Applicant to be examined by a healthcare professional of its choosing to assist it in determining whether the Applicant is or continues to be entitled to a benefit under the Schedule for which an application has been made. Pursuant to section 44(1) of the Schedule, the Respondent is not permitted to conduct IEs more often than is reasonably necessary. Pursuant to section 44(5) the IE notice must include the medical and other reasons for the examination, whether the Applicant is required to attend at the examination, the name of the person(s) who will conduct the examination – including the examiners regulated health profession, title, designation indicating the specialization, and the day, time and location of the examination. Section 44(6) stipulates that the Respondent must give no less than five business days notice before the examination.
22As referenced earlier, the Tribunal has adopted a safeguard for insured persons to protect them from overreaching IE requests. Tribunal decision 17-005291/AABS v Travelers Canada, (“Travelers”), provides six factors to consider when determining whether IEs are scheduled more than reasonably necessary pursuant to s. 44(1)1. The factors are;
The timing of the respondent’s request;
The possible prejudice to either side;
The number and nature of previous examinations;
Whether there are any new issues being raised in the claim that require evaluation;
The nature of the examination being requested; and
Whether there is a reasonable connection between the examination requested and the applicant’s injuries.
23I find that the letter from the Respondent to the Applicant, dated September 24, 2019, satisfies the various notice requirements in section 44 of the Schedule.
24The September 24, 2019 letter confirms that an “In Home Assessment with Form 1 – In Person Assessment” and a “Psychological – In Person Assessment” are scheduled. The letter includes the name of the examiners and the date and times of the examinations. The letter also advised that transportation and interpretation services will be provided and requests that any additional medical documentation that is relevant be sent directly to the examiner no later than one week prior to the assessment.
25Best practices provides that the IE notice includes all the notice requirements in one letter, but it is not a strict requirement. As outlined in B.M. v. Unica Insurance Inc., (“BM”), the Applicant “should not be expected to piece together “medical or other reasons” for an examination from disparate notices and correspondence..”2 The scenario in BM involved a letter that included insufficient medical and other reasons in the initial notice, the insurer repeated the mistake in a subsequent notice, and then relied on reasons provided in a further, subsequent, notice for an examination which never occurred.
26I find this case is distinguishable from BM because the Respondent provided clear medical reasons and notice of examination. The medical reasons in the letter dated September 23, 2019, noted previously, are clear and include sufficient information for the Applicant to determine whether to participate in the examination. In the letter, the Respondent noted what it believed was an irregularity in the report related to the Applicant’s reported need for attendant care based on physical impairments. The Respondent contemplated the Applicant’s self-reported health status according to the report by occupational therapist Moy and advised that no medical documents on file indicate a physical impairment. I acknowledge that the September 23, 2019 letter fails to include any details relating to the examiner or the date(s) and time(s) of the examinations. However, it expressly states that those details will follow in a subsequent letter – which was provided the following day.
27The September 24, 2019 letter provides the remaining notice requirements pursuant to section 44(5) and is compliant with the time provisions in section 44(6) of the Schedule. As previously noted, the September 24, 2019 letter provides the examiner details, the dates and times of the examinations, advises that transportation will be provided, and requests that the Applicant submit relevant medical documents directly to the examiner. The examinations were scheduled more than a month in advance. The September 24, 2019 letter explicitly refers to the September 23, 2019 letter. Read together, the two letters are clear and unambiguous and satisfy the notice requirements in sections 42 and 44 of the Schedule.
28I find that the letters dated September 23 and 24, 2019 satisfy the criteria outlined in Travelers for the following reasons.
29The timing of the Respondent’s request is reasonable. The Applicant’s Form 1 is dated September 19, 2019 and the Respondent provided a valid response by no later than September 24, 2019. I find this is a reasonable and timely request considering that the Schedule permits the Respondent up to ten business days to respond to the application for ACBs. I am not aware of any litigation, or contemplated litigation, contemporaneous to the request which would suggest that the request is made nefariously as an attempt to bolster the Respondent’s position.
30The Applicant is not prejudiced by participating in the proposed IEs. As noted, there is no evidence that any litigation was ongoing or contemplated at the time of the Respondent’s request for IEs. I acknowledge that the Applicant sustained psychological injuries as a result of the accident, I am not aware of any reason(s) why she would be harmed or unable to participate in the examinations. If anything, the Respondent may be prejudiced if denied its right to examine the Applicant by a regulated healthcare professional.
31The Respondent’s request is reasonable considering the number and the nature of prior IEs. The Respondent submits that the IEs it requested are the first two examinations sought pursuant to section 44 of the Schedule. It is reasonable for the Respondent to seek examinations pursuant to section 44 of the Schedule considering it conducted no prior IEs.
32The Applicant raised new issues in the claim that the Respondent determined to require evaluation. The Respondent requested the examinations because the Applicant initiated a claim for ACBs and it questioned the accuracy of the Form 1. The Respondent questioned why the Applicant required attendant care services for physical activities as a result of psychological impairments and sought examinations pursuant to section 44 of the Schedule.
33There is a reasonable and direct connection between the psychological and occupational therapy examinations being sought. The IEs sought to clarify the Applicant’s entitlement to ACBs, which requires the production of a Form 1, which must be completed by an occupational therapist or a registered nurse. The Applicant submits she sustained psychological injuries and claims an inability to complete her personal care tasks as a result. The Applicant provided an In-Home Assessment Report and Form 1 which stated that she experienced difficulty with sustained/repetitive bending at the lumbar level. Regardless of the source of impairment, be it physical or psychological, ACBs involves the execution of physical tasks. Flowing from this logic, I conclude that the Applicant’s claims may corroborate that she sustained psychological injuries that in turn causes her to require assistance with physical tasks. Thus, I further conclude that the Applicant’s impairments, as they relate to ACBs, include both functional and psychological components. Considering this, I find that there is a reasonable nexus between the Applicant’s impairments and the examinations sought by the Respondent.
34Considering the above, I find that the Applicant failed to attend properly scheduled IEs and is barred from proceeding with her Application relating to her claim for ACBs effective August 15, 2019.
ACBs for the period thereafter
35I find that the Applicant’s non-compliance with section 44 of the Schedule continued through, 2020. Thus, she is barred from proceeding with her claim relating to ACBs for the period from August 15, 2019 to-date and ongoing.
36As I will outline, and similar to the notices discussed earlier, I find that the Respondent made a valid and compliant request for IEs pursuant to section 44 of the Schedule.
37On May 13, 2020, the Applicant submitted a treatment and assessment plan dated May 4, 2020, proposing another in-home assessment and production of a Form 1. The Respondent replied to the plan on May 19, 2020 and denied the Applicant entitlement to the goods and services because it still considered the Applicant to be non-compliant under section 44 of the Schedule.
38On June 17, 2020, the Applicant submitted a new Form 1, dated May 29, 2020, completed by A. Carnegie, occupational therapist. The May 29, 2020 Form 1 recommended that the Applicant receive $6,882.27 per month in ACBs.
39On June 24, 2020, the Respondent wrote to the Applicant and advised that it is unable to approve the Form 1 and requires IEs. Like the September 23, 2019 letter, this letter advised that the IE details will be sent in a separate letter, but it provided the following medical and other reasons;
In a prior Attendant Care Assessment/In-Home Report from Mr. Moy dated August 22, 2019, he has indicated on page 5 that you are independent with your personal care tasks, you are not at risk for falls and that you did not require 24-hour care.
The report from Ms. Carnegie indicates that one of the limiting factors is your lower back pain, which you have indicated in not as a result of this accident. There is no medical documentation on file to indicate physical impairments sustained as a result of this accident that would support the need for attendant care assistance.
The amount of care indicated in the Form 1 appears excessive as you were not involved in the accident.
40On June 29, 2020, the Respondent wrote to the Applicant, referred to the June 25, 2020 letter, and advised that IEs were scheduled for July 17 and 22, 2020. The letter provided the date, time, and location of the examinations, as well as the examiners names and requisite credentials. The letter invites the Applicant to provide relevant medical documents to the examiner.
41As noted earlier, best practice provides that the Respondent satisfy all its section 44 notice requirements in a single notice. However, the Respondent’s delivery of the medical and other reasons first in the June 25, 2020 letter, followed by the particulars of the examinations in the June 29, 2020 letter are satisfactory. The Applicant is not required to piece together reasons for the IEs but, rather, has all the required information provided in two letters which clearly refer to each other.
42Counsel for the Applicant wrote to the Respondent on July 17, 2020 and requested that the Respondent provide clarification as to which attendant care recommendations it believes are based on physical impairments alleged from the accident that render an in-person IE reasonable and necessary. The letter also directed the Respondent to a telephone counselling note dated April 15, 2020 and prescription receipt for Citalopram, dated May 5, 2020, which were both enclosed in the letter.
43The Respondent wrote to the Applicant again on July 20, 2020 and confirmed that the Applicant failed to attend the IE and that it requires reasons for her non-attendance. The letter further stated that the Applicant’s entitlement to ACBs is suspended as of July 17, 2020 and that it will resume payment of ACBs only if the Applicant attends and participates in the IEs.
44The Respondent wrote to the Applicant again on August 4, 2020. The letter confirms receipt of the July 17, 2020 letter and reiterates the previous medical and other reasons and provides further clarification it states:
For further clarification, Ms. Bachour was not directly involved in this accident and did not suffer any physical injuries as a result. However, under the “mobility” section of the Form 1, it has been noted she requires assistance with walking. As such, we require her to be assessed to determine why she requires assistance with walking despite not having suffered any physical injures. This also applies to the time allotted under bathroom and bedroom hygiene.
It was also noted in the report from Dr. Hannah Rockman dated October 8, 2019 that Ms. Nuha reported improvement in her mood and her sleep as well as feeling optimistic about managing her symptoms.
There is no medical documentation on file to support the increase in attendant care needs from $4,135.74 to $6,882.27.3
45The Respondent wrote to the Applicant again on August 7, 2020 to reschedule the In-Home Assessment and Form 1 IE for September 10, 2020. The notice referred to the letters dated June 24 and 29, 2020 and provided the date, time and location of the examination as well as the examiners relevant credentials.
46Counsel for the Applicant replied on August 12, 2020 to refute the Respondent’s medical and other reasons for scheduling IEs and again requested clarification of its medical and other reasons that render an in-person IE to be reasonable and necessary.
47On September 15, 2020, the Respondent wrote to the Applicant and advised that she failed to attend the examination. The letter further states that the Respondent is suspending the Applicant’s entitlement to ACBs effective July 17, 2020 as a result of her non-compliance with section 44 of the Schedule.
48Counsel for the Applicant wrote the Respondent on October 2, 2020 to refute the medical and other reasons for the IEs again. The letter is critical of the Respondent’s medical and other reasons and states that “(i)t is unsurprising then that (the Applicant) did not attend an examination, the reasons for which she may have taken as an insult.” 4 Nevertheless, the letter concludes with a request that the Respondent reschedule the occupational therapy IE so counsel may urge her to attend it.
49The Respondent rescheduled the IEs and advised the Applicant of them in a letter dated October 13, 2020. The Respondent advised that the examinations were rescheduled for November 11 and December 7, 2020. The letter refers to the notices dated June 24 & 29, 2020, and August 7, 2020.
50Once again, counsel for the Applicant took issue with the Respondent’s request for IEs. The letter dated October 15, 2020 states that, amongst other things, the Applicant is unable to provide her informed consent to, or attend, a psychological IE without explanation why a psychologist is required to assess the Applicant’s need for ACBs.
51The Respondent never replied to the October 15, 2020 letter and the Applicant never attended the IEs.
52As outlined previously, the Applicant’s claims involve psychological injuries which she claims precludes her from performing physical tasks. The Respondent’s request for psychological and occupational therapy IEs is directly related to the Applicant’s claims and is reasonably required to make a determination on her entitlement to ACBs.
53The Respondent repeatedly rescheduled the IEs at the Applicant’s request, despite her continued failure to participate in the examinations. The Respondent is not required to demonstrate to the Applicant that the IEs are reasonable or necessary. Instead, section 44 of the Schedule provides the requisite IE notice requirements discussed earlier.
54It appears that the Applicant conflates the term “reasonably necessary” in section 44(1) of the Schedule with the “reasonable and necessary” test for entitlement to medical and rehabilitation benefits described in sections 15 and 16 of the Schedule. The Respondent is not required to demonstrate that an IE is “reasonable and necessary” as stated in the Applicant’s letters October 8, 2019, July 17, 2020, and August 12, 2020. Rather, pursuant to section 44(1) of the Schedule, the Respondent must demonstrate that the IE is conducted “not more than reasonably necessary”. The Travelers decision provides clarification on what factors to consider when determining whether IEs are “not more than reasonably necessary”. I agree with the interpretation and considerations in Travelers and have applied them to this case accordingly, as explained earlier.
Entitlement to the May 4, 2020 Occupational Therapy Assessment Plan
55I find that the Applicant is also barred from proceeding with her application relating to her claim for entitlement to an occupational therapy assessment plan.
56The Applicant submitted this treatment and assessment plan at a time when she was not in compliance with section 44 of the Schedule as it relates to her claim for ACBs. Yet, the primary purpose of the May 4, 2020 occupational therapy plan is to assess the level of ACBs required, despite the benefit being suspended for non-compliance with section 44 of the Schedule.
57It would be unreasonable to force the Respondent to fund the Applicant’s re-evaluation of her ACB needs during a period where her entitlement to ACBs is suspended due to a failure to attend properly scheduled IEs. The main purpose of the in-home assessment is to produce a Form 1, which provides a calculation of the Applicant’s ACB needs. However, it is unreasonable to calculate those needs during a period where the Applicant’s entitlement to the benefit is suspended.
Discretion pursuant to section 55(3)
58I choose not to exercise my discretion provided by section 55(3) of the Schedule and will not permit the application on the issues, with or without conditions.
59Section 55(3) provides that the Tribunal may permit an insured person to apply to the Tribunal despite a failure to attend an examination pursuant to section 44 of the Schedule. Section 55(4) permits me to allow the application but impose certain terms and conditions on the permission granted.
60I find that permitting the Application for these issues would be highly prejudicial to the Respondent in that it would be forced to proceed to a hearing without having the benefit of any IEs. The Applicant produced psychological and occupational therapy reports but has prevented the Respondent from exercising its rights to an examination by a healthcare professional of its choosing. It would be patently unfair to permit the Applicant to proceed with her Application without allowing the Respondent to obtain an opinion of its own, pursuant to section 44 of the Schedule.
CONCLUSION AND ORDER
61The Applicant failed to attend IEs scheduled in accordance with section 44 of the Schedule. Pursuant to section 55(1) of the Schedule, the Applicant shall not apply to the Tribunal under these circumstances. Thus, her Application as it relates to her claims for ACBs for the period from August 15, 2019 to-date and ongoing, as well as her claim for an attendant care assessment plan dated May 4, 2020 is dismissed.
62I choose not to exercise the discretion permitted in section 55(3) of the Schedule, with or without terms or conditions.
63The parties are directed to Tribunal Order dated May 20, 2021 for instruction on how to address the substantive issues in dispute.
Released: December 20, 2022
Brian Norris Adjudicator
Footnotes
- 2018 CanLII 13172
- 2020 CanLII 72512 (ON LAT)
- Respondent’s submissions, Tab 18
- Respondent’s submissions, Tab 23