Citation: Godber v. Aviva Insurance Company, 2022 ONLAT 20-006792/AABS

Licence Appeal Tribunal File Number: 20-006792/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:

Georgia Godber

Applicant

and

Aviva Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

VICE-CHAIR:

Ian Maedel

APPEARANCES:

For the Applicant:

Eric Winkworth, Counsel

For the Respondent:

Danielle N. Wilkinson, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on January 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was conducted on March 8, 2021. During the case conference, a written preliminary hearing was scheduled for July 12, 2021.

3The written preliminary hearing was later adjourned to August 23, 2021.

4A substantive videoconference hearing was scheduled for July 13-14, August 18-19, 22-24, 2022. The substantive issues in dispute include a catastrophic impairment determination, income replacement benefits, four treatment plans, cost of assessments, an award, and interest.

5In my Motion Order dated August 3, 2021, I permitted the respondent to file brief reply submissions to the applicant’s sur-reply dated July 9, 2021.

PRELIMINARY ISSUES

6The respondent raised the following preliminary issue:

i. Is the applicant precluded from proceeding with her application disputing her entitlement to a medical benefit in the amount of $4,405.17 for an MCAT Study and occupational therapy intervention for failing to attend a s. 44 insurer’s examination (“IE”) pursuant to s. 55 of the Schedule?

RESULT

7I find that:

i. The Notice of Insurer’s Examination dated June 14, 2018 does not comply with the requirements under s. 44(5)(a) and, therefore, s. 55 of the Schedule is not engaged;

ii. The request to bar this entire application, pursuant to s. 55(1) of the Schedule, is denied;

iii. An award pursuant to s. 10 of Regulation 664 is already in dispute. As such, this issue shall be addressed at the substantive hearing;

iv. The applicant’s request for costs pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”) shall be held in the cause; and

v. The videoconference hearing to address the substantive issues in dispute remains scheduled for July 13-14 and August 18-19, 22-24, 2022.

PARTIES’ POSITIONS

8This preliminary matter relates to a Treatment and Assessment Plan (“OCF-18”) dated July 12, 2016 seeking payment for occupational therapy and an MCAT training course in the amount of $4,405.17. This OCF-18 was provided to the respondent on May 29, 2018 and denied by way of an Explanation of Benefits dated June 8, 2018.

9The respondent’s position is that the Notice of Insurer’s Examination dated June 14, 2018 complies with s. 44 of the Schedule. The respondent submits that the Notice specifically includes any medical and any other reasons for the examination in compliance with s. 44(5) sufficient enough to allow an unsophisticated person to make an informed decision whether to accept or dispute the decision at issue. The applicant failed to attend the neuropsychological IE scheduled for September 6, 2018 and also failed to provide a reasonable excuse for her non-attendance. She has also not requested the IE be rescheduled. The respondent submits the applicant last attended a neuropsychological IE in November 2016 and has not been evaluated since. For these reasons, the respondent submits that the applicant should not be permitted to have her entitlement to the July 12, 2016 OCF-18 determined by the Tribunal pursuant to s. 55 of the Schedule.

10The applicant’s position is that the Notice dated June 14, 2018 does not comply with s. 44(5) of the Schedule, as it did not provide medical and other reasons for the examination. After receiving the Notice, the applicant specifically requested clarification in August 2018 regarding the reasons for the in-person neuropsychological IE. The applicant then identified the non-compliant Notice in her Case Conference Summary dated October 22, 2020. The applicant submits that given the deficient Notice and the failure to comply with s. 44(5), the respondent cannot rely on s. 55 of the Schedule to bar her claim for entitlement to the July 12, 2016 OCF-18. As a result, the applicant submits this preliminary issue should be dismissed, there should be a finding the applicant is entitled to an award pursuant to s. 10 of Regulation 664, and costs are warranted pursuant to Rule 19 of the Rules. In the alternative, the applicant submits that if the Notice is accepted, the Tribunal exercise its discretion under s. 55(2) of the Schedule to permit the respondent to conduct this neuropsychological IE via paper review.

ANALYSIS

Notices of Examination

11Section 44(5) dictates the requirements for valid Notices of Examination as follows:

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…

12I find that the Notice of Examination dated June 14, 2018 failed to comply with s. 44(5)(a) of the Schedule.

13Much 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.¹

14Though 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 often-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.

15The medical reasons cited on the Notice of Examination dated June 14, 2018 are:

Post accident school grades appear to have improved than before the motor vehicle accident on Jan 8, 2016 school grades.²

16While I agree that a respondent is not held to a standard of perfection in providing medical and other reasons, the reasons cited above fall short of the standard set out in s. 44(5)(a) and in M.B. They do not link the applicant’s grades to a specific medical condition, or establish what information is missing that the respondent requires. In my view, these reasons are not clear and are not sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision.

17Given these purported reasons, it is understandable that the applicant failed to attend the IE scheduled on September 6, 2018. As per the Tribunal decision in B.M. v. Unica Insurance Inc.,³ the applicant should not be expected to piece together medical or other reasons for an examination from disparate notices and correspondence, nor to advise an insurer of deficiencies in those notices so they can be corrected.⁴ The respondent has not otherwise provided a principled rationale for the IE as required, and these insufficient reasons compromise the very consumer protection mandate the Schedule was designed to protect and promote.

18I also find that the respondent was advised of the deficient medical and other reasons in the Notice at issue. In email correspondence dated August 13, 2018, the applicant requested clarification with regard to the medical and other reasons and questioned why an IE was required at that time.⁵ Similarly, the applicant repeated these concerns in her Case Conference Summary dated October 22, 2020. The respondent did not provide a subsequent Notice, instead indicating in its reply submissions that additional information would have been supplied upon the applicant’s request. This does not satisfy s. 44(5)(a), as the medical and other reasons should be apparent on the face of the Notice. The onus is on the respondent to provide a Notice that is compliant with s. 44. A compliant Notice should not require the respondent to provide further reasons or an explanation after the Notice of Examination has been served, nor should the applicant ever be required to seek further information pursuant to a deficient Notice.

19Given my finding that the June 14, 2018 Notice failed to comply with the requirements of s. 44(5)(a), I do not need to make a determination whether the issue of the applicant’s entitlement to the July 12, 2016 OCF-18 is barred from proceeding because s. 55(1)2 is not engaged.

20The respondent’s request to bar the applicant’s entire application is denied. The issue of Notice and compliance with s. 44(5) of the Schedule relates to only one of the treatment plans in dispute. To bar the entire application pursuant to s. 55, including the application for a determination of catastrophic impairment and income replacement benefits would result in an absurdity, and would compromise procedural and substantive fairness of this matter pursuant to Rule 3.1(a) of the Tribunal Rules.

Award

21An award pursuant to s. 10 of Regulation 664 is already a substantive issue in dispute. It would be premature for me to make any final determination on this issue in advance of the substantive hearing. Only the hearing adjudicator will have the full panoply of evidence before them in order to make a reasoned decision on this issue. Thus, a final decision on this issue shall be left to the hearing adjudicator.

Costs

22The applicant’s request for costs shall be held in the cause and considered with the substantive issues in dispute at the hearing set to commence in July 2022.

ORDER

23I find that:

i. The Notice of Insurer’s Examination dated June 14, 2018 does not comply with s. 44(5)(a) and therefore s. 55 of the Schedule cannot be engaged;

ii. The request to bar this entire application, pursuant to s. 55(1) of the Schedule, is denied;

iii. An award pursuant to s. 10 of Regulation 664 is already in dispute, this matter shall be addressed at the substantive hearing;

iv. The applicant’s request for costs pursuant to Rule 19 shall be held in the cause;

v. The videoconference hearing to address the substantive issues in dispute remains scheduled for July 13-14, August 18-19, 22-24, 2022.

Released: June 27, 2022