Maillet v. The Dominion of Canada General Insurance Company, 2022 CanLII 59510

Citation: Maillet v. The Dominion of Canada General Insurance Company, 2022 ONLAT 20-011519/AABS

Licence Appeal Tribunal File Number: 20-011519/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:

Paige Maillet

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

MOTION DECISION

Order made by: Craig Mazerolle, Adjudicator

Date of Order: July 4, 2022

BACKGROUND

1The applicant was injured in an automobile accident on August 23, 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 September 6, 2022.

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

4The respondent filed a Notice of Motion (submitted January 13, 2022) seeking to bar the applicant’s request for an IRB from proceeding to a hearing, pursuant to s. 55(1) of the Schedule. Briefly, the respondent alleged that the applicant did not attend an insurer’s examination (“IE”) with a physiatrist, so she cannot contest this part of her application.

5For the reasons to follow, I will not grant the respondent’s requested relief. Instead, the remaining hearing deadlines will be modified to allow a rescheduled IE to take place.

PARTIES’ POSITIONS

6The respondent claimed the applicant failed to attend a “reasonably necessary”, physiatry IE it scheduled to test her entitlement to an IRB after the 104-week post-accident mark. Specifically, it first asked her to attend this IE in October 2020, but—despite rescheduling it several times—the applicant has not completed the testing. She has also failed to provide a reasonable explanation for missing these appointments. The respondent is facing significant prejudice from this non-attendance (especially since it has never had the chance to test her physical condition with a physician), so her claim for an IRB should be struck.

7The applicant opposed the motion. First, she claimed that the respondent never provided a Notice of Examination with medical “reasons”. This lack of “reasons” is fatal to the motion, because s. 55(1) of the Schedule is only triggered with a compliant notice. In the alternative, the applicant claimed she made best efforts to attend the physiatry IE, so the Tribunal should apply its discretion pursuant to s. 55(2).

8In reply, the respondent disputed the allegation that it failed to provide a compliant Notice of Examination. It cited a selection from M.B. v. Aviva Insurance Canada (“M.B.”)¹ where Executive Chair Lamoureux determined that reference to the post-104-week IRB standard constitutes a valid medical “reason”. The respondent also highlighted the applicant’s attendance at the other IEs listed in this notice (i.e., functional abilities evaluation, psychiatric assessment, and vocational assessment) as evidence that she was not confused by the letter.

ANALYSIS

Relevant Legislation

9Section 44(1) of the Schedule defines an insurer’s ability to require an insured person to attend an IE as follows [emphasis added]:

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.

10Section 44(5) lists the requirements for a valid Notice of Examination [emphasis added]:

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.

11Section 55(1) disallows applicants from pursuing a benefit if they did not attend a properly scheduled IE, but 55(2) provides discretion to allow non-compliant applicants to continue with their applications.

Notice of Examination

12Since the parties disagree about the sufficiency of the respondent’s “medical and any other reasons”, it is helpful to quote the oft-cited paragraph from M.B. that described the consumer protection purpose underpinning “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.²

In short, “reasons” are a procedural right that insured persons can rely on to help them navigate accident benefit disputes. These statements should not complicate an already complicated process. Instead, they should assist insured persons (regardless of their familiarity with the accident benefits system) to understand and respond to their insurers’ requests for IEs, denials, etc.

13Further, as cited by the respondent in its reply, M.B. provided specific guidance for when “reasons” are needed to explain IEs being set up to test the 104-week pos-accident IRB standard. Briefly, after determining that this respondent’s “reasons” did not make sense in light of other, contemporaneous IEs, the Executive Chair opined about what “reasons” might have satisfied s. 44(5) [emphasis added]:

Moreover, Aviva’s real reason for requesting the additional IEs was something different. Aviva recognized that M.B. had eclipsed the 104-week mark and, consequently, the test for her entitlement to the IRB had become more onerous. As Aviva’s submissions before the Tribunal explain, it sent M.B. the April 26, 2016 EOB to advise her that the additional “IEs were required in order to assess her continuing entitlement to IRBs, as she was now in the post-104-week period” [emphasis added]. Aviva obviously wanted to determine if, as s. 6(2)(b) of the Schedule requires, M.B. was now completely unable to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. That explanation, if outlined clearly, might have gone a considerable way to providing M.B. with the medical reason under s. 44(5)(a) to which she was entitled. But Aviva did not offer that explanation in any way that allowed an unsophisticated person to understand, let alone make an informed decision how to respond. In the circumstances, therefore, I find that Aviva’s notice was insufficient.³

14Determinations about the sufficiency of “reasons” must be made in light of the specific facts of the case, but findings from other adjudicators may still be of assistance. By applying the reasoning from M.B., I am satisfied that the respondent provided a compliant Notice of Examination for the physiatry IE.

15The Notice of Examination for the physiatry IE (along with the rest of the IRB-focused IEs) was issued over two letters (dated October 28 and 30, 2020). In the October 28, 2020 letter, the respondent provided the following information about its request [emphasis in original]:

Section 37(1) of the Statutory Accident Benefits Schedule (SABS) indicates that if an insurer wishes to determine if an insured person is still entitled to a specified benefit, the insurer will notify the insured person that the insurer requires an examination under section 44 of the SABS. Following our review and in an effort to determine your ongoing entitlement to the Income Replacement Benefit, we will be arranging for you to attend (an) Insurer’s Examination(s) based on the following medical and any other reasons:

• It has been over 2 years since your accident

• You have been paid an Income Replacement Benefit as you met the disability test described in Section 5(1) of the Statutory Accident Benefits Schedule (SABS). This benefit is payable for 104 weeks, after which time the test for continued entitlement to the benefit changes. Specifically, in order to continue to qualify for ongoing benefits you must now “suffer a complete inability to engage in any employment or self-employment for which you are reasonably suited by education, training or experience.”

Further details of the Insurer’s Examination(s) will follow by separate letter.

16I find these “reasons” meet the consumer protection mandate of s. 44(5)(a). This letter laid out the following information: the benefit at issue; the relevant provisions of the Schedule; and the basis for the proposed IEs. On this last point, the letter indicated that the standard for entitlement to an IRB changes at the two-year stage, i.e., the point in time of this particular applicant’s claim. Therefore, the respondent wanted to test whether she met this new standard. I find this information meets the consumer protection mandate for “reasons”, because it provided the applicant with context about why the testing was being proposed. Put another way, it provided information that allowed the applicant to be an active participant in this stage of the adjusting process.

17The October 30, 2020 letter then included the remaining, necessary details from ss. 44(5), e.g., date and time of the IEs; assessors’ qualifications, etc. I do note that this second letter incorrectly stated that the earlier October 28, 2020 letter was dated “November 14, 2020”. However, considering the relatively short period of time between the two letters, I am satisfied that any confusion caused by this typo would have been minor at best.

18Taken together, these letters met the requirements for a valid Notice of Examination under s. 44(5) of the Schedule.

“Reasonably Necessary” Examinations

19I am then satisfied that the physiatry IE was “reasonably necessary” for assessing the applicant’s entitlement to an IRB.

20First, the timing of the IE indicates that it was arranged for the purpose of determining the applicant’s entitlement to an IRB following the 104-week post-accident mark. Specifically, the testing was first proposed in October 2020, i.e., just over two years after the accident. The applicant’s application was filed with the Tribunal shortly before this testing was requested (i.e., on October 2, 2020). Yet, considering the then recent passage of the 104-week mark, I am still satisfied that the timing suggests the IE was not proposed for an improper purpose, e.g., bolstering the respondent’s case at a hearing.

21Second, there is a reasonable nexus between the physiatry IE and the IRB. As noted in the respondent’s submissions, the applicant’s medical records include references to physical impairments allegedly caused by the accident (e.g., the Disability Certificates, dated August 27, 2018 and September 9, 2019). Therefore, it was reasonable for the respondent to want to test the applicant’s employment capacity through the lens of physical impairments and functioning.

22Finally, considering there has yet to be an IE conducted by a physician that is focused on the applicant’s physical condition, I do not find this single IE with a physiatrist is excessive. Rather, I am again satisfied that this request is reasonable.

23In sum, I find the applicant failed to attend a “reasonably necessary” IE meant to assess her entitlement to an IRB. She received a compliant Notice of Examination, so s. 55(1) of the Schedule is triggered.

Section 55(2)

24Despite this non-attendance, I will use the discretion afforded to me under s. 55(2) to allow the applicant’s claim for an IRB to proceed to the hearing.

25I accept that there is significant prejudice facing the respondent from proceeding to a hearing without a physiatry report. Once again, the applicant’s alleged impairments include physical complaints, so a procedurally fair process requires the respondent to have an opportunity to assess these claims with its own physiatry assessor. However, I am also satisfied that the applicant has demonstrated a genuine interest to participate in the IE process, and a complete bar on pursuing this benefit would be highly (and unduly) prejudicial to her interests.

26It is true that the respondent has scheduled four physiatry assessments since this IE was first proposed in October 2020. Yet, the first two appointments were postponed due to concerns about the COVID-19 pandemic. For the third, the applicant asserted that she was not afforded sufficient time by the respondent to provide a reasonable explanation before the fourth date was set. The applicant was ill for the fourth appointment. The respondent asked for evidence of this illness (e.g., doctor’s note), but the applicant challenged this request. Specifically, she contended that there was ample medical documentation on file to demonstrate her health concerns in and around this time.

27Overall, I find that there are reasonable explanations for at least three of the four missed appointments. Briefly, the applicant’s health (and concerns about COVID-19) limited her ability to participate in this part of the IE process. Further, despite the respondent’s concern about the lack of medical documents to justify the fourth, missed appointment, the applicant’s attendance at the other IRB-focused assessments is proof of her genuine interest to complete this testing. Put another way, the applicant’s attendance at these other IEs allows me to conclude that she did not miss the physiatry appointments as means of interfering with the respondent’s ability to assess her claim. Rather, there were legitimate health concerns that meant she could not attend several of these appointments.

28More importantly though, I am satisfied that there is enough time prior to the start of the hearing for the parties to work together to reschedule this physiatry assessment. Therefore, with some minor amendments to the remaining hearing deadlines, I am satisfied that there is still sufficient time for the parties to schedule and conduct this “reasonably necessary” IE.

29In sum, I do not find it is necessary to strike the applicant’s claim for an IRB under s. 55(1). Instead, I will use the discretion under s. 55(2) to allow the claim to proceed. Striking a part of an applicant’s claim without a hearing is a remedy that should only be used when there is no other viable means to address the prejudice at hand. In this case, I find there is still a means to remedy the respondent’s prejudice, i.e., amend the hearing timetable to allow the physiatry IE to take place.

ORDER

30The missed physiatry IE is “reasonably necessary”, pursuant to s. 44(1) of the Schedule, and the respondent provided a compliant Notice of Examination for this IE, pursuant to s. 44(5).

31The applicant’s claim for an IRB is allowed to proceed to the hearing, by virtue of s. 55(2).

32The parties shall disclose any items that have not been previously disclosed, but which they intend to present as evidence at the hearing, by August 15, 2022.

33The parties shall exchange (and file with the Tribunal) their document briefs and witness lists by August 19, 2022.

34Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full force and effect.

Footnotes

1. 12017 CanLII 87160 (ON LAT) (Reconsideration).
2. 2M.B., at para. 26.
3. 3M.B., at para. 31.