Licence Appeal Tribunal File Number: 21-014598/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:
Hafiz Mustafa
Applicant
and
Allstate Canada
Respondent
PRELIMINARY ISSUE DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Hafiz Mustafa, Applicant
Lazar Andjelkovic, Counsel
For the Respondent:
Munir Datoo, Representative
Adriana Vaduva, Counsel
Heard in writing
BACKGROUND
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 June 25, 2021.
SUBSTANTIVE ISSUES IN DISPUTE
2The substantive issues in dispute are as follows:
i. Is the applicant entitled to an income replacement benefit in the amount of $99.79 per week from October 30, 2021 to date and ongoing?
ii. Is the applicant entitled to $5,250.00 ($8,700.00 less $3,450.00 approved) for medical services, proposed by MINDS Inc. in a treatment plan/OCF-18 dated January 24, 2022?
iii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
PRELIMINARY ISSUE TO BE DECIDED
3The respondent raised a preliminary issue in this written hearing, with the question being:
i. Is the applicant barred from proceeding to a hearing for the substantive issues listed below because the applicant failed to attend any insurer’s examinations under section 44 of the Schedule?
RESULT
4I find the applicant is barred from proceeding with his application because he failed to attend the section 44 examination.
FACTS
5The applicant was involved in a motor vehicle accident on June 25, 2021. The applicant sought the income replacement benefit and medical benefits, which were denied by the respondent. He filed an application with the Tribunal on November 26, 2021.
6On March 8, 2022, the respondent wrote to the applicant to advise him that an insurer examination was scheduled for April 13, 2022. This was in response to the applicant’s claim for the income replacement benefit and two OCF-18s. The Notice of Examination was enclosed with this letter.
7On April 12, 2022, an email was sent by the applicant’s counsel’s office to the respondent requesting that the insurer’s examination (‘IE’) be rescheduled until such time that further medical documentation can be provided and reviewed. The respondent responded on the same day and advised that not enough notice had been provided to reschedule the IE as there is a 72-hour cancellation policy. However, the applicant was advised that as additional medicals become available, they can be sent in for the purposes of an addendum report. On the morning of the examination, the applicant requested that the IE be rescheduled and claimed that the Notice of Examination was not compliant with section 44(5) of the Schedule.
8On June 2, 2022, the respondent advised the applicant by letter that his appointment had been rescheduled for July 12, 2022 and enclosed a Notice of Examination indicating as such. On July 13, 2022, the respondent was informed by A.R.S. Assessment Rehabilitation Services that the applicant did not attend the IE on July 12, 2022.
PARTIES’ POSITIONS
9The respondent submitted that both Notices of Examination were compliant with section 44 of the Schedule. The respondent stated that, “Furthermore, it is important to note that it has been found that the standard when assessing whether a Notice is compliant is not perfection. It is the overall sufficiency of the Notice that should be assessed.” The respondent is relying on Hardy-MacDonald v. Wawanesa Mutual Insurance Company, 2021 CanLII 50776 (ON LAT), M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) and 17-002921 v Aviva Insurance Canada, 2018 CanLII 76416 (ON LAT).
10The applicant submitted that the Notice of Examination dated March 8, 2022 was deficient in that it did not specify the proposed medical professional that was to examine the applicant, nor were their credentials, specialties, or accreditations specified. Moreover, the reasons provided by the respondent in all of the letters mentioned above are identical in wording, which falls far short of the “specific” and “unique” guidelines as set out by the Tribunal and Court. Moreover, not a single medical reason was provided for why the IE was being requested, other than that there is insufficient medical information.
11Furthermore, the respondent failed to consider the additional medical documentation that was provided and not provide a revised notice which identified “medical and any other reasons” to explain to its insured why the requested IE was required, which violated the applicant’s procedural right. Finally, the reasons provided in each notice are identical and could foreseeably be copied and pasted to apply to any insured. As noted in Hedley, referenced below, boilerplate reasons constitute no reasons at all.
12The applicant also asserted that the none of the notices specified that the applicant would be assessed for the purposes of the income replacement benefit. Therefore, this issue should proceed to a substantive issue hearing on its merits.
13In support of his argument, the applicant is relying on Hedley v. Aviva Insurance, 2019 ONSC 5318, M.B. v. Aviva Insurance Canada, 17-004357 v. Aviva General Insurance, 2018 CanLII 13152 (ON LAT), T.H. v. Allstate Insurance Company of Canada, 2020 CanLII 35514 (ON LAT), M.M. v Aviva Insurance Company, 2020 CanLII 37673 (ON LAT), Sugunarajan v. Wawanesa Mutual Insurance Company, 2022 CanLII 49933 (ON LAT), and G.P. v. Wawanesa Mutual Insurance Company, 2022 CanLII 45306 (ON LAT).
LAW AND ANALYSIS
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:
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: …
- 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.
ANALYSIS
19I find that the applicant is barred from proceeding with his application for failing to attend an insurer examination because he did not put forward a reasonable explanation for his failure to attend. I decline to exercise my discretion under ss. 55(2) and (3) of the Schedule to permit the application to proceed despite the non-compliance.
Notice of Examination dated March 8, 2022
20The respondent submitted a copy of the Notice of Examination dated March 8, 2022. The notice explains that the respondent does not have any documented compelling evidence regarding the motor vehicle accident. There are no medical records from the family physician, specialist or hospital. There are no documents/medicals to support that the applicant is unable to return to work as an Uber and taxi driver. The notice also notes that there are no supporting documents regarding the accident or his pre-accident medical history/conditions. It is also noted that this has been communicated to the applicant’s counsel. The applicant’s conditions that are listed in the OCF-18 are replicated in the notice of examination.
21The facility name is listed as A.R.S. Assessment Rehabilitation Services Ltd, and in the section entitled “Health Professional(s) Conducting the Examination/Date/Location,” the contact’s name is Naseta Zarin. The regulated health profession to which Ms. Zarin belongs and her title and designation indicating her specialization is not listed. The March 8, 2022 notice does not identify any other person who might be understood as an assessor who would be conducting the examination, their regulated health profession, titles, designations, etc. within the meaning of s. 44(5)(c).
22I find that the notice fails to comply with s. 44(5)(c), which pertains to the assessors’ qualifications and professional designation. The respondent submitted that the notice included the name of the examining doctor, the doctor’s designations and listed orthopaedic surgery under specialty. I disagree with this assertion. I note that the relevant part of the March 8, 2022 notice in both the respondent’s and applicant’s submissions appears to be cut off. Be that as it may, the respondent raised this preliminary issue, and it bears the burden of proving to this Tribunal that it issued a Schedule-compliant notice to the applicant. There is no information about any professional qualifications or designations that would satisfy s. 44(5)(c) in this notice. Without this information, I find that this notice is not valid.
Notice of Examination dated June 2, 2022
23The cover letter accompanying this notice informed the applicant that his appointment was cancelled and rescheduled for July 12, 2022. A new Notice of Examination was enclosed. There is a note on the second page of the notice which states “we require Mr. Mustafa to participate in an Insurer's Examination to determine accident-related injuries and to comment if this OCF-18 and previously submitted and denied OCF-18's are reasonable and necessary as a direct result of the motor vehicle accident of June 25, 2021. We will also be addressing Income Replacement Benefits and if Mr. Mustafa suffers a substantial inability to perform the essential tasks of his employment as a result of the accident.”
24The Notice of Examination notes type(s) of examination: Income replacement benefits and medical and rehabilitation benefits. It also sets out the applicant’s conditions. It identifies the information that the respondent does not have but requires. It refers to the benefits that are in dispute. 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. In my view, the second notice complies with the requirements in s.44(5).
25Both parties rely on the Tribunal’s reconsideration decision in M.B. v. Aviva, which sets out the criteria to consider in assessing whether an insurer has satisfied its responsibility to provide sufficient medical and other reasons in support of its requests for insurer examinations. I find M.B. to be persuasive and helpful to my analysis. In that decision, the Executive Chair stated as follows:
An insurer satisfies its obligation to provide its "medical and any other reasons," by explaining its decision with reference to the insured's medical condition and any other applicable rationale. That explanation will tum on the unique facts at hand…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. These 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.
26The 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 Schedule to bar an insured’s application.
27I find the respondent identified the information that it requires but does not have. The notice explains in a clear manner why he needed to undergo an insurer examination. This is in line with M.B. v. Aviva Insurance Canada and T.H. v. Allstate Insurance Company of Canada.
28I find that this case is distinguishable from M.M. v Aviva Insurance Company. because the language in the notice in this case is clear, unambiguous and understandable to an unsophisticated person. In M.M., the Tribunal found the statement to be incomplete, unclear, lacked particulars and was not sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the respondent’s decision. I am not persuaded that is the case in this matter.
29With respect to Hedley v. Aviva Insurance, the Divisional Court found that boilerplate medical reasons for denials of treatment plans submitted under the Schedule were found to constitute no reasons at all. Reasons must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination. I am bound by Hedley, certainly for the principle that the respondent must provide meaningful reasons, whether it is in respect of a denial of a treatment plan or, in this case, in respect of requesting an IE. I find that the respondent’s reasons for the IE in this notice were adequate, meaningful, and understandable to an unsophisticated and therefore compliant with the Schedule.
30As for the argument that the respondent should have issued a new notice upon the receipt of the medical evidence, there is nothing in the Schedule that directs them to do that. Nor has the applicant pointed me to where this is set out in the Schedule. I am not persuaded by this argument.
31I also find that the notice specified that the applicant would be assessed for the purposes of the income replacement benefit. I am not persuaded by the applicant’s argument that the notice did not specify this.
32The applicant has not provided the Tribunal evidence that he was misled or confused by the notice or unable to understand it.
33For these reasons, I find that the second notice complied with the informational requirements of s. 44(5) as it was clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the insurer examination or dispute it.
34Although s. 55(2) permits the Tribunal to allow an insured to apply for dispute resolution despite being non-compliance with s. 44, and s. 55(3) provides that the Tribunal may impose terms and conditions on any permission granted, I decline to exercise my discretion under these sections because the applicant has not put forward a reasonable explanation for his non-attendance at the insurer examination.
35As noted in the July 11, 2022 email from the respondent, contained within the applicant’s submissions, the applicant refused to confirm that he would attend the rescheduled insurer examination. Rather, in a same-day reply, the applicant took the stance through his legal representative that he would not be attending because the respondent did not comply with its obligation to inform him of the medical and any other reasons why the insurer examination is reasonable and necessary [sic; s. 44 refers to “reasonably necessary” but that is of little moment here].
36I find this to be unreasonable. Just as much as the insurer has a duty of good faith to adjust the claim and provide the applicant with medical and any other reasons why the IE is required, I find that the applicant has a duty to cooperate with the respondent where the IE notice is compliant. After the June 2, 2022 notice of IE, the applicant waited the day before the July 12, 2022 IE to raise concerns about the notice, when the respondent requested the applicant to provide 72 hours’ advance notice if he would not attend the scheduled insurer examination. The applicant raising his concerns about the IE notice at the last minute is unreasonable. Refusing to attend the rescheduled IE frustrated the respondent’s ability to assess the applicant. As such, I decline to exercise my discretion.
ORDER
37The applicant is barred from proceeding with his application because he failed to attend the respondent’s s.44 insurer examination. The application is dismissed.
Released: November 18, 2022
Tavlin Kaur
Adjudicator