Citation: Sugunarajan v. Wawanesa Mutual Insurance Company, 2022 ONLAT 21-000665/AABS - M

Licence Appeal Tribunal File Number: 21-000665/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Stanislous Sugunarajan

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

MOTION DECISION

Order made by:

Craig Mazerolle, Adjudicator

Date of Order:

June 2, 2022

BACKGROUND

1The applicant was injured in an automobile accident on July 19, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2A videoconference hearing is set to start on July 18, 2022.

3The issues in dispute include requests for an income replacement benefit (“IRB”), an attendant care benefit (“ACB”), medical benefits, and an award.

NOTICE OF MOTION

4A motion hearing was held on March 11, 2022 to address the following two Notices of Motion from the applicant.

5The applicant filed his first Notice of Motion (submitted December 30, 2021) seeking the following relief:

a. An order striking certain expert reports from the respondent; and

b. An order adding a new issue to the dispute.

6The respondent did not oppose adding the new issue, but it opposed the other form of relief.

7The applicant then filed a second Notice of Motion (submitted February 22, 2022) seeking the following relief:

a. An order finding the IRB was not denied in accordance with s. 37(4) of the Schedule; and

b. An order requiring payment of outstanding IRB amounts (with interest).

8The respondent opposed the second motion.

PARTIES’ POSITIONS

9The applicant supported his request to strike several of the respondent’s expert reports by claiming that the related Notices of Examination did not include “medical and any other reasons for the examination”, pursuant to s. 44(5)(a) of the Schedule. These medical “reasons” are necessary for a valid Notice, because it is not enough to simply state why an assessment is being arranged. The applicant also submitted that one of the letters did not include the professional designations of the proposed assessors, a violation of s. 44(5)(c). The applicant did attend the insurer’s examinations (“IEs”) requested in these Notices. However, the deficient Notices now mean the resulting reports must be struck. Support for this remedy is well established at the Tribunal, e.g., N.M. v. Aviva Insurance Canada (“N.M.”)¹ and B.M. v. Unica Insurance Inc. (“B.M.”)².

10Turning to the allegedly improper denial of his IRB, the applicant again contended that there were no medical reasons provided in the denial letter, a breach of s. 37(4) of the Schedule. Support for this position comes from the Tribunal’s decision in R.P. v. Certas Home and Auto Insurance Company (“R.P.”)³. In this case, the adjudicator found the denial letter for a non-earner benefit was overly legalistic and unspecific—similar to the present denial.

11The respondent first argued that its disputed letters were not deficient. Specifically, they all included medical reasons that complied with the Schedule. The respondent then challenged the request to strike its expert reports by submitting that the applicant is attempting a “gotcha” moment. That is, he attended the IEs but then waited to challenge the Notices. There is also no prejudice facing the applicant from these reports, and there is no evidence to suggest he did not understand the Notices. Finally, there is no remedy in the Schedule associated with a breach of s. 44(5).

ANALYSIS

Notices of Examination

12Section 44(1) of the Schedule defines an insurer’s ability to require an insured person to attend an IE as follows:

For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

13Section 44(5) lists the requirements for valid Notices of Examination:

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.

14I am satisfied that the October 25, 2018 letter, as well as the Notices for three of the five IEs listed in the April 9, 2019 letter, are compliant with s. 44(5). The other Notices are deficient, i.e., the remaining two Notices in the April 9, 2019 letter; the July 29, 2019 letter; and the July 6 and August 12, 2020 letters.

15Much of the parties’ arguments about these Notices involved disagreements about the sufficiency of “the medical and any other reasons”. It is, therefore, helpful to quote the oft-cited paragraph from M.B. v. Aviva Insurance Canada (“M.B.”), where Executive Chair Lamoureux described the consumer protection purpose for “reasons”:

In my view, 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… 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.⁴

16Though determinations about the sufficiency of “reasons” must be made in light of the specific facts of the case, they are, ultimately, a procedural right that insured persons can rely on to help them navigate the complicated landscape of accident benefit disputes. At a minimum, “reasons” should assist insured persons to make informed choices about how to access benefits and dispute denials.

17A valid Notice must also include the location/date/time of the IE and information about the proposed assessor. These details are important. Not only for the practical need of letting someone know when and where to show up, but—considering the highly personal nature of this testing—an insured person is entitled to know who will be assessing them, including their professional designations. The insured person may also want to review a regulated health professional’s membership with their professional college. This information is not window dressing, but rather key information necessary for upholding the consumer protection mandate underpinning s. 44(5).

18The first Notice of Examination at issue is the October 25, 2018 letter. It asked the applicant to attend an IE with an orthopaedic surgeon. Details about the assessor and his qualifications were provided, as well as the location, date, and time for this testing. The following “reasons” were given to explain the need for the assessment:

The medical reasons and all of the other reasons why we consider any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary are : pursuant to Section 38(9) of the Statutory Accident Benefits Schedule, this letter serves as notice that we do not agree with the treatment and assessment plan on the basis that we believe you have an impairment to which the Minor Injury Guideline applies. According to the information on file at the present time, there is no objective clinical evidence to indicate your injuries fall outside the Minor Injury. In fact, we have already requested clinical notes and hospital records under section 33 of the SABS but we still have not received any as of today. You were being treated under the Minor Injury. We require that you be examined under section 44 to assist in determining if you have an impairment to which the Minor Injury Guideline applies.

19I accept that more clarity could have been added to these “reasons”, namely, the order of the statements is somewhat confusing. However, I still find these “reasons” meet the underlying purpose of s. 44(5)(a). Briefly, the letter establishes the basis for the denial and then links this basis to the proposed testing. By reviewing the information it has on file, the respondent did not find objective, clinical evidence to support the applicant’s removal from the Minor Injury Guideline. The respondent, therefore, wanted to test this assumption with an IE. I find this information meets the consumer protection mandate for “reasons”, because it provided the applicant with an understanding of what steps he could take to either accept the IE or challenge it, e.g., provide objective evidence to support his claim.

20The second set of Notices of Examination under review are contained in the respondent’s April 9, 2019 letter. This letter asked the applicant to attend five IEs related to his claim for an IRB. I find the following “reasons” meet the standard of s. 44(5)(a):

This letter also serves as notice, in response to your application for a specified benefit, that we require you to be examined under Section 44 of the SABS. The medical and any other reason for this examination is : In the insurer’s examination report dated November 21, 2018, Dr. Yee, Orthoapedic [sic] Surgeon, concluded that your accident related injuries could be classified as soft tissue, minor injuries… In his independent report dated March 5, 2019, the Neurologist determined that the examination was normal, no neurological impairments were identified and there were no signs of traumatic injury to the brain, spinal cord, cervical nerve roots, lumbar nerve roots, peripheral nerves or muscles. The insurer has approved therapy, as recommended, to address your psychological injuries. Considering the time that has passed since the accident and treatment received to date, we require you to be examined under Section 44 to determine if you continue to suffer a substantial inability to perform the essential tasks of your pre-accident self-employment.

21Once again, this letter meets the consumer protection mandate, because it provided the applicant with information about the respondent’s understanding of his medical condition—an understanding that then illuminated the need for this testing. I am also satisfied that the applicant had sufficient information to assist him in determining what steps, if any, he could take next.

22I will add that a clear reference to the IRB as the benefit at issue would have been helpful. However, when these “reasons” are read in conjunction with an earlier description in the letter of what is captured under the term “specified benefit”, I am content that there was enough clarity for a lay person to understand what benefit was at stake.

23Where I find this Notice fails though is under s. 44(5)(c), i.e., the description of the assessors’ qualifications and professional designations. All five of the proposed IEs have the location, date, and time clearly laid out, but only three of the proposed assessors had their professional designations listed. For the remaining two assessments (i.e., the physical demands analysis and the functional abilities evaluation), the Notice simply indicated that they were being conducted by “Ms. Dawn Rynberk”. There is no information about her qualifications or professional designation. Without this information, there was no valid Notice of these two IEs.

24Moving to the third Notice of Examination, the respondent used the letter (dated July 29, 2019) to deny the applicant’s request for an ACB. It then asked him to attend an IE with an occupational therapist. I do not find the “reasons” contained in this letter meet the standard of s. 44(5)(a):

… According to insurer examination report dated June 26th 2019, completed by Dr. Gilbert Yee (orthopaedic surgeon), [the applicant] has residual symptomology related to myofascial strains of the cervical spine, trapezil [sic], shoulder, and lumbar spine as a direct result of the injuries sustained in the accident. My clinical findings today demonstrate tenderness to palpation in the regions of complaint. He demonstrated some local pain behaviours but function [sic] range of motion. There were no objective clinical findings to suggest active radiculopathy or myelopathy.

We require an independent medical examination under Section 44 to determine if the injuries sustained because of the motor vehicle accident necessitates the service of an aide or attendant for personal care/attendant care needs, and if the costs being claimed are reasonably required.

25I fail to see how these “reasons” provide any guidance to the applicant. After listing a number of medical findings, there is a sharp, disconnected cut to stating that an assessment is needed. It is reasonable to assume that a lay person reviewing this Notice would be confused about why the IE is needed, since it appears Dr. Yee found a series of medical issues. Therefore, by not connecting these findings to the need for the proposed IE, the letter failed to provide helpful guidance to the applicant.

26In contrast, the April 9, 2019 letter mentioned both Dr. Yee’s findings and a series of normal, neurological findings. There were also other justifications provided for the testing (e.g., the treatment provided to date). This context is missing from the July 29, 2019 letter, so I find this letter failed to provide the assistance needed to meet the consumer protection mandate.

27I would then add that there were no quotation marks included in this letter that would indicate when Dr. Yee’s report was being quoted. Instead, the reference to “My clinical findings…” might have indicated to the applicant that it is the author of the letter (not Dr. Yee) who made these findings. This lack of clarity added further confusion to the letter.

28The final pair of letters before me (first dated July 6, 2020, with rescheduled dates in a letter dated August 12, 2020) are plainly deficient. While these letters stated the benefit at issue, and information about the location, time, and assessors for the four, proposed IEs, there are no “reasons” in either letter. The closest the letters come to explaining the purpose of the four IEs is in the July 6, 2020 letter:

We are scheduling an Insurer’s Examination to address your claim for Post-104 weeks Income Replacement Benefits. An Insurer’s Examination is an independent assessment which is arranged by [the respondent]. This assessment is required to review entitlement to Post-104 weeks Income Replacement Benefits.

There is no connection made between the applicant’s medical condition and the proposed testing, nor is there any indication of what information might be missing from the respondent’s understanding of his condition. Rather, the applicant is simply told to attend the IEs. There is no guidance for the applicant, so I find these letters fail to meet s. 44(5)(a). As such, there was no valid Notice for these four IEs.

Remedy for Deficient Notices

29By finding several of these Notices of Examination to be deficient, I must now determine what remedy is appropriate to address these breaches of s. 44(5). For the following reasons, I will strike the resulting reports from the July and August 2020 letters. The remaining reports shall be allowed into the hearing record, and the adjudicator will determine what weight should be applied in light of the breaches.

30Section 44(5) is a mandatory provision that protects core interests of the accident benefits regime, including consumer protection, privacy, etc. Despite the lack of an express remedy attached to this provision, I am satisfied that breaches of this section require a meaningful remedy. On the other hand, the Tribunal has an obligation to ensure procedural fairness in all of its proceedings. A key aspect of procedural fairness is the ability of parties to put forward credible cases that address the foundational components of the dispute. In light of these competing interests, I will grant the applicant’s requested remedy for several, but not all, of the reports resulting from these deficient Notices.

31First, I find the remedy proposed by the applicant is available at the Tribunal. This remedy has been established through case law (namely, N.M. and B.M.), and—though it is a significant remedy—I find it can be appropriate in cases where striking a report does not unduly and irrevocably imperil the fairness of the proceeding.

32Therefore, due to the need to ensure fairness to both sides, I find only the reports related to the July and August 2020 letters can be struck from the hearing record. I reach this finding, because there is still a way to adequately test the applicant’s condition pursuant to the operative entitlement standard used in these reports, i.e., the post-104 week IRB standard. The same opportunity does not exist for the other disputed reports, because these assessments tested the applicant during a relevant time period that has passed. Put simply, there is no longer a way to adequately assess the applicant’s condition during the pre-104 week period for either the IRB or the ACB.

33First, the standard for entitlement to an IRB changes significantly after the 104-week post-accident mark, because the focus moves from whether insured persons can perform their pre-accident employment to whether they can perform any employment that they are reasonably suited to perform. The IEs from the April 9, 2019 letter tested the applicant’s entitlement to an IRB during the period before the 104-week mark, while the July and August 2020 letters proposed IEs to test his condition after this mark.

34There is a clear difference in the prejudice facing the respondent’s case from striking the pre- and post-104 week reports, because the latter can be replicated through in-person testing. On the other hand, the pre-104 week period ended in July 2020, so there is no way for the respondent to now re-do testing that could adequately replicate the applicant’s condition during this period. Despite the breach of s. 44(5), striking the IE reports that arose from before the 104-week mark would unduly and irrevocably imperil the respondent’s case.

35I reach the same finding for the report arising from the July 29, 2019 letter. This Notice asked the applicant to attend an IE to test his entitlement to an ACB. Unless an insured person is found to be catastrophically impaired (a designation that is not before the Tribunal at this time), this benefit can only be paid out until the 104-week mark. Much like the pre-104 week period for the IRB, there is no way the respondent can now obtain testing that would adequately replicate the applicant’s condition during this period. This lack of testing will unduly and irrevocably prejudice the respondent’s case for this benefit, again imperiling the fairness of the proceeding.

36Instead, the more appropriate remedy to address the deficiencies in the April 9 and July 29, 2019 Notices is to allow the hearing adjudicator to determine what weight will be afforded to these reports. It should also be noted that the applicant confirmed that the physical demands analysis report was not captured under his Notice of Motion, as he only asked for Ms. Rynberk’s functional abilities evaluation report to be struck.

37In response to the respondent’s arguments about prejudice and the length of time the applicant waited to file this motion, I note that insured persons are not expected to alert insurers of procedural breaches. Section 44(5) is a mandatory provision, and, as found in M.B., it is afforded a high level of importance at the Tribunal. Therefore, despite the respondent’s position that there is no prejudice facing the applicant from these breaches (and no evidence to suggest he was confused by the Notices), there must be a remedy for breaching this mandatory provision.

38Finally, the respondent cited S.V. v. Aviva Insurance Canada⁵ as a case where the adjudicator did not strike a report resulting from a deficient Notice. I do not find this case is persuasive, because the proposed “remedy” could be prejudicial to insured persons. Briefly, the adjudicator stated that, when faced with deficient Notices, an applicant could not attend the IEs “until the notices were compliant.”⁶ This arrangement could cause applicants to imperil their applications at the Tribunal, due to the effects of s. 55(1) of the Schedule. It is not reasonable to require insured persons to take this kind of risk to enforce an insurer’s compliance with a mandatory section, especially in light of the consumer protection mandate underpinning s. 44(5).

Denial of the Income Replacement Benefit

39Section 37(4) of the Schedule provides the following requirements to an insurer when it is seeking to deny payment of a specified benefit [emphasis added]:

If the insurer determines that an insured person is not entitled or is no longer entitled to receive a specified benefit on any one or more grounds set out in subsection (2), the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination.

40I am satisfied that the respondent’s letter denying the applicant’s request for an IRB (dated December 16, 2020) is compliant with s. 37(4) of the Schedule. In turn, there is no need to determine whether the applicant is entitled to outstanding IRB payments (with interest).

41Though this case spoke about the use of “reasons” within the context of Notices of Examination, the reasoning cited above from M.B. is still helpful. Once again, M.B. instructs adjudicators to view “reasons” as a procedural right that insured persons can rely on to help them navigate accident benefit disputes. I am satisfied that, to meet the consumer protection mandate of the Schedule, denial letters for specified benefits should include “reasons” that assist insured persons to make decisions about whether (and how) to challenge a denial. With this purpose in mind, I find the respondent’s denial letter meets this goal.

42The relevant parts of the December 16, 2020 letter read as follows:

You recently participated in an Insurer’s Examination. We have enclosed a copy of the report for your review. We have reviewed the report and the other information on file. We have determined that you do not suffer a complete inability to engage in any employment for which you are reasonably suited by education, training or experience. Your income replacement benefit will be stopped effective February 8, 2021 as outlined in Section 37 of the Statutory Accident Benefits Schedule.

This determination is based on our review of the report(s) and Dr. Erin Boynton opines that you do not suffer from a complete inability to engage in any employment or self-employment for which are you are reasonably educated by training and experience. Dr. Boynton indicates in his report that you are currently deconditioned and would benefit from participation in a work hardening program over a six-week period. Upon completion of the program Dr. Boyton [sic] has indicated that you would be capable of returning to your pre-accident employment as a truck driver. Your income replacement benefit will continue until February 8, 2021 to allow time for you to complete the six-week work hardening program.

43I am satisfied that this letter meets the requirement for “medical and any other reasons” under s. 37(4). After referencing the attached report and highlighting the findings of Dr. Boynton, the respondent indicated that the applicant’s IRB payments would soon cease. Together, these statements state: the specified benefit at issue; the relevant evidence before the respondent; and the connection between this evidence and the denial. As such, I find this letter provides a clear foundation for understanding the respondent’s reasons for issuing the denial. I then conclude that this information was sufficient to allow the applicant to determine what steps, if any, he would need to take to challenge the denial, i.e., he has to challenge Dr. Boynton’s opinion.

44I will note that the use of the term ”reasonably educated by training and experience” in the second paragraph quoted above is somewhat confusing. However, when paired with the other information contained in this letter (including the earlier articulation of the “complete inability” standard), I am still satisfied that this letter is compliant with s. 37(4).

45By finding that the letter included compliant “reasons”, I will now turn to the applicant’s other arguments. I do not find these submissions are persuasive.

46First, the applicant took issue with the respondent’s use of the term “complete inability” without a corresponding explanation for this standard. Similarly, the applicant had concerns that the phrase “complete inability to engage in any employment for which you are suited by education, training, or experience” is too legalistic for a lay person to understand. I do not share these concerns.

47Aside from the likelihood that additional context about what constitutes a “complete inability” would have given rise to further legalese, this term cannot be read in isolation. By pairing the phrase “complete inability” with Dr. Boynton’s finding about how a work hardening program should leave the applicant “capable of returning to… pre-accident employment”, I conclude a lay person would understand what this standard entails (and how it was applied to the case).

48In a similar fashion, I do not accept the applicant’s concern about how the IRB’s specific provision in the Schedule was not listed. Again, the entitlement standard at issue was cited and used in a manner that would have allowed an insured person to understand what reasoning grounded the denial (as well as what findings needed to be challenged to dispute this denial).

49Second, the applicant claimed that the letter did not reference details about his medical condition. I do not agree. To help explain this finding, I will highlight two cases the applicant cited: R.P. and T.F. v. Peel Mutual Insurance Company (“T.F.”)⁷. According to the applicant, the “reasons” provided in the letters from these decisions did not provide sufficient detail to establish a proper denial. The present denial letter is similarly deficient.

50Beyond the fact that each set of “reasons” must be read in their specific context, these decisions are not analogous. While the adjudicators from R.P. and T.F. took issue with the lack of context provided in the letters, I am satisfied that the reference to Dr. Boynton’s report was sufficient to explain the denial. For example, in T.F., the adjudicator found the respondent relied on a reference to “medical documentation”⁸ to establish the denial—a move the adjudicator did not accept. By citing Dr. Boynton’s report in the letter, the same issue is not at play.

51In sum, I find the denial letter (dated December 16, 2020) complied with s. 37(4) of the Schedule. There was a valid denial of the IRB, so there is no need to consider the applicant’s related relief, i.e., payment of outstanding IRB amounts.

New Issue

52Considering the respondent’s lack of opposition (and the efficiency promoted through adding this issue to the dispute), I will grant the applicant’s request to add the new issue to the dispute.

ORDER

53The following issue is added to the dispute:

i. Is the applicant entitled to $4,440.90 for medical marijuana (as recommended in a treatment plan from Dr. Rajni Saraf, dated October 5, 2021)?

54The expert reports resulting from the July 6 and August 12, 2020 Notices of Examination may not be entered into the hearing record for this application.

55Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full force and effect.

Footnotes

1. 12019 CanLII 94126 (ON LAT).
2. 22020 CanLII 72512 (ON LAT).
3. 32019 CanLII 72198 (ON LAT).
4. 42017 CanLII 87160 (ON LAT) (Reconsideration), at para. 26.
5. 52020 CanLII 40332 (ON LAT).
6. 6Ibid., at para. 24.
7. 72018 CanLII 39373 (ON LAT) (Reconsideration).
8. 8Ibid., at para. 27.