Licence Appeal Tribunal File Number: 20-005675/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:
Sharmar Ali
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Andrew Franzke, Counsel
For the Respondent: Maia K. Abbas, Counsel
Heard by way of written submissions
REASONS FOR DECISION
OVERVIEW
1Sharmar Ali, ("the Applicant"), was involved in an automobile accident on February 6, 2018, and sought benefits 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 Economical Insurance Company, ("the Respondent"), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").
2In response to the application, the Respondent raised a preliminary issue that is the subject of this hearing.
PRELIMINARY ISSUE
3The preliminary issue is as follows:
a. Pursuant to section 55(1)2 of the Schedule, is the Applicant statute barred from proceeding with this application because he failed to attend scheduled section 44 examinations?
RESULT
4I find that the Applicant may proceed with his application.
BACKGROUND
5The Applicant was the driver of a vehicle which spun off a curved roadway and struck a tree. He was 17 at the time of the accident. The Applicant completed an application for accident benefits, and the Respondent characterized his injuries as falling within the Minor Injury Guideline ("the MIG").
6The Applicant sough entitlement to non-earner benefits ("NEBs") and treatment outside of the MIG. In response to the claim, the Respondent sought several insurer's examinations ("IEs"), pursuant to section 44 of the Schedule. The Applicant never attended any of these IEs.
7The Applicant applied to the Tribunal to resolve the dispute over the characterization of his injuries, as he believes he is wrongly subject to the MIG. He also submits he is entitled to a psychological assessment.
PARTIES' POSITIONS
8The Respondent raised a preliminary issue in response to the application. It submits that the Applicant is barred from proceeding with his application for failure to attend the IEs.
9The Applicant agrees that he did not attend the IEs. However, he contends that his application should proceed because the IE notices were deficient. Specifically, the Applicant submits the first notice failed to unambiguously outline the consequences for non-attendance. To him the language "..if you don't attend all examinations without a reasonable explanation, it could jeopardize the payment of your benefits being assessed" does not adequately outline the consequences of non-attendance. They need to be provided in a manner that is straightforward, clear, explicit, unambiguous and understandable to an unsophisticated person, as prescribed in D.C. v. Aviva Insurance Canada1. He further submits that the Respondent has not met its obligation to provide the medical and other reasons for the IE and failed to provide the adjuster's email address.
10Moreover, the Applicant submits that his application should proceed, because the proposed IEs related only to NEBs, and this present application involved his entitlement to certain medical benefits, not NEBs. Also, he submits that he has a reasonable excuse for his non-attendance.
11The Respondent, in reply, submits that the Applicant's affidavit demonstrates that he understood the purpose, date, and time of the IEs.
ANALYSIS
12Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to evoke its rights to an IE.
13Relevant to this hearing, section 44(5) requires an insurer to give the insured person proper notice of the IE. A compliant notice must include: the medical and other reasons for the examination, the name(s) of the examiner(s) and their credentials, and whether the insured person is required to attend the IE. An insurer is obligated to schedule the IE for a day and time that is convenient for the insured person: see section 44(9)(2)(i). Insured persons are obligated to provide any relevant information or documents no later than five business days in advance of the IE, and they must attend the IE and submit to all reasonable examinations requested by the person(s) conducting the IE.
14Pursuant to section 55(1)2 of the Schedule, an Applicant shall not apply to the Tribunal if he or she have failed to attend a properly scheduled IE. Pursuant to section 55(2), the Tribunal has discretion to permit the application to proceed despite non-compliance, and, pursuant to section 55(3), it may impose terms and conditions if it permits the application to proceed.
15In sum, the Respondent is permitted to require the Applicant to attend an examination with a healthcare provider of its choice in order to assist in determining whether the Applicant is, or continues to be, entitled to a benefit. However, there are limits to this power. For example, the Respondent is not permitted to assess a benefit payable in accordance with the MIG and it is not permitted to assess the Applicant more often than "reasonably necessary".
16Here, the Respondent's request for an IE is valid. The Applicant claimed entitlement to medical benefits that fall outside the MIG and the $3,500.00 funding limit, as well as NEBs. The Respondent sought an independent medical opinion to assist it in determining whether the Applicant is entitled to NEBs. The request is valid considering the Applicant's disability certificate dated February 27, 2018 anticipated that his disability would last 9-12 weeks, which is before the Applicant was ever eligible for NEBs.
17However, the Tribunal has determined that an IE notice must be compliant with section 44 of the Schedule in order to rely on section 55(1)2 as a barrier to proceeding with the application2.
18For the reasons that follow, I find that the Respondent provided compliant notice of IEs related solely to the Applicant's request for NEBs, not for any medical benefits. To me, section 55 of the Schedule prevents the Applicant from applying to the Tribunal to contest the Respondent's decision to deny payment of NEBs, but not medical benefits. Yet, NEBs are not at issue for the substantive hearing.
19As a result, I find that the Applicant may proceed with his application because the Respondent has failed to provide notice of IEs for medical benefits that is compliant with section 44 of the Schedule.
IE Notices
20Once again, the compulsory IE notice requirements are listed in section 44(5) of the Schedule. These requirements include providing the medical and other reasons for the assessment.
21I find that the IE notices are improper as they fail to include the medical and other reasons for the assessment. Specifically, none of the notices advise the Applicant that the Respondent wishes to assess his entitlement to medical benefits. Further, the Respondent's actions following the notices did not remedy the defect. In contrast, I do not find the Applicant's action (or inaction) surrounding the missed IEs renders the notices to be proper.
22The letter dated August 1, 2018 is not compliant with the Schedule. That letter advised that it would send notice of an IE to determine if he is or continues to be entitled to NEBs. However, this letter does not refer to the MIG or the treatment and assessment plans in dispute. Further, the letter fails to provide the information required in section 44(5) of the Schedule – there is no information about the nature of the assessments, the examiners, or the dates/times of the IEs.
23The letter dated August 10, 2018 is compliant with the Schedule for NEBs only. That notice states that it requires the Applicant to attend physiatry, psychology, and occupational therapy IEs on August 28, September 5, and September 20, 2018, respectively, to address his entitlement to NEBs, because more than 12 weeks have passes since the accident and that the disability certificate stated an anticipated duration of disability of 9-12 weeks. The examiners' names, credentials, and the day and time of the IEs are provided. This letter also asks the Applicant to contact the Respondent with 5 business days notice if he is unable to attend the IEs and that a failure to attend the IEs without a reasonable explanation could jeopardize the payment of the benefits being assessed.
24The August 10, 2018 notice refers to the MIG, but is ambiguous and fails to state that any of the IEs are to determine whether the Applicant sustained a minor injury. Thus, this letter does not compel the Applicant to attend the IEs on account of his entitlement to medical benefits. The letter states [emphasis added]:
"...the Treatment Confirmation Form (OCF 23) and OCF-3 form both state you have sustained minor, soft tissue injuries of sprain and strain of cervical spine and acute upper cervical spine strain and sprain as a result of the accident. As these injuries are classified within the Minor Injury Guideline (MIG) provisions, we also request your participation in Section 44 Insurer Examinations to determine your ongoing entitlement to the non-earner benefit."
25The Applicant did not attend the August 28, 2018 IE and did not attempt to contact the Respondent to reschedule it.
26The Applicant did not attend the September 5, 2018 IE and did not attempt to contact the Respondent to reschedule it.
27The Respondent sent the Applicant a letter dated September 11, 2018. The letter advised that the Applicant failed to attend the initial IEs, and that new IEs would be scheduled. It also noted that a failure to attend will result in holding the Applicant "in Non Compliance". This is not proper notice of an IE.
28The notice dated September 13, 2018 is improper with respect to the medical benefits at issue. It notes that it requires the Applicant's participation in IEs on October 2 and 10, 2018 to determine whether he is still entitled to NEBs. The assessors, their credentials, and the times of the assessments are all provided. However, this notice fails to provide the medical and other reasons for the examination and makes no reference to medical benefits.
29The Applicant did not attend the September 20, 2018 IE. The Applicant did not attempt to contact the Respondent to reschedule it.
30The Applicant did not attend the October 2, 2018 IE, which was part of the second group of IEs scheduled. A representative from the office of Applicant's counsel wrote an email at 10:13 a.m. on October 2, 2018, about 2 hours prior to the start of the IE. The email advised that the IE must be rescheduled because the Applicant is unable to attend it due to the flu. However, the Respondent never received the email because it was sent to the wrong email address.
31Adjuster's log notes indicate that the Respondent called Applicant's counsel's office on October 5, 2018. The notes state that the Applicant's representative was not available to speak and that the Respondent will be called back. The notes further states that the Respondent advised the call-taker at the Applicant's Counsel's office that the Applicant failed to attend 4 IEs, that the Respondent sought confirmation the Applicant would attend the October 10, 2018 IE, and that they will consider whether the Applicant is in non-compliance due to a failure to attend the IEs. There is no evidence that the Applicant's representative ever called the Respondent back.
32However, without getting into the merits of whether the verbal notice was proper, I note section 44(8) of the Schedule only permits the Respondent to provide verbal notice of an IE if written confirmation is given "as soon as practicable afterwards." In this case, the Respondent never sent written confirmation following the verbal notice. Thus, I cannot consider this telephone call to be valid verbal notice.
33The Applicant, and his representative, made no effort to notify the Respondent that the Applicant was unable to attend the October 2, 2018 IE.
34A follow-up email from the Applicant's counsel's office, addressed to the wrong email address again, was sent on October 31, 2018, asking for a reply to the email dated October 2, 2018. The Applicant, nor anyone from his counsel's office, has made any attempt to reschedule the IEs since October 31, 2018.
35Considering the above, it is clear that the Respondent never asked the Applicant to attend an IE to assess whether he sustained a minor injury or was entitled to medical benefits beyond the MIG.
Why is proper notice important?
36Proper IE notice is important to permit the Applicant to decide whether he wishes to proceed with his claim or not. I recognize that IEs are an intrusion into the insured's privacy, and that the insured should be provided with sufficient information to determine whether to give up that privacy in order to participate in the claims process.
37For the Applicant, he was told that the IE was for NEBs. He has since abandoned his claim for NEBs. It would be unreasonable to for him to give up his privacy to attend an IE relating to a benefit he no longer seeks entitlement to. Section 44(5) of the Schedule is a mandatory provision that the Respondent must comply with. The Applicant's actions, inactions, or statements after the fact, do not change this fact.
38Further, as noted above, section 44(9)2(ii) of the Schedule provides that:
II. The insured and insurer shall provide relevant information and documents to the examiner no later than five business days before the examination;
39Without proper notice of the benefits or designations at issue, an insured person is left without knowing what relevant documents they should provide to the assessor in advance of the IE. Documents that are relevant to the NEB may be different than those that are relevant to an insured persons entitlement to medical benefits.
Prejudice to the Respondent
40I considered whether the Respondent would be prejudiced if the application was to proceed and determined that there is none.
41Up front, it may seem prejudicial to permit the Applicant to proceed with his application, despite his failure to attend IEs, leaving the Respondent with no independent medical opinion to rely upon. However, a further review of the evidence shows that the Respondent sought IEs for NEBs only and its sole reason to deny the Applicant's claims for medical benefits is based in its minor injury determination, which was made without an IE. The Respondent concluded that the Applicant sustained a minor injury without the help of an IE and, to-date, has never provided the Applicant with a compliant IE notice stating that it wishes to examine whether the Applicant sustained injuries that fall outside the minor injury definition.
COSTS
42Pursuant to rule 19 of the Common Rules of Practice and Procedure, costs may be awarded when one parted has acted unreasonably, frivolously, vexatiously, or in bad faith during a proceeding.
43The Respondent seeks $1,200.00 in costs due to the prejudicial, frivolous, and unreasonable nature of the application. It mentions that it incurred cancellation charges for the missed appointments, and that a cost award would discourage such conduct in the future.
44The Applicant submits that the Tribunal has no jurisdiction to award costs for cancellation fees. To this point, the Respondent replied and clarified that it seeks costs due to the "prejudice, and frivolous, and unreasonable nature of this application" and not to compensate it for cancellation fees incurred.
45Considering my findings above, I conclude that there is no evidence that shows the Applicant acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding. As a result, the Respondent's request for costs is denied.
CONCLUSION
46The Respondent failed to provide the Applicant with proper notice of an IE related his entitlement to medical benefits, pursuant to section 44(5) of the Schedule. As a result, the provisions in section 55 of the Schedule, which would bar this application, do not apply.
47The Applicant may proceed with his application.
Released: August 29, 2022
Brian Norris Adjudicator
Footnotes
- 2018 CanLII 76416
- M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT)