Amie Edmond v. Sonnet Insurance Company, 2023 CanLII 122913

22-010202/AABS - PI

Licence Appeal Tribunal File Number: 22-010202/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:

Amie Edmond

Applicant

and

Sonnet Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Alden Dychtenberg, Counsel

For the Respondent:

George Tsakalis, Counsel

Heard by way of written submissions

OVERVIEW

1Amie Edmond, the applicant, was involved in an automobile accident on July 14, 2021, 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 benefits by the respondent, Economical Mutual Insurance Company (“Economical”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for all of the benefits claimed in this application because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule.

RESULT

3The applicant is barred from proceeding with her application.

ANALYSIS

4Section 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.

5The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:

(1) 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.

6Section 44(9)2. sets out the rules for an in-person insurer examination:

(1) If the attendance of the insured person is required,

(a) the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,

(b) 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

(c) 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.

7Section 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 section 44, but the insured person has not complied.

8Given 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.

9To be clear, the respondent must first prove that a Notice of Examination complies with section 44(5) of the Schedule in order for an applicant to be statute-barred from proceeding under section 55. In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit in dispute and any section it relies upon.¹

10It is well-settled that the insurer’s medical and any other reasons should 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. The “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision on whether to attend the IE.

11Moreover, it is trite law that boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute as no reasons at all. Reasons must be meaningful in order to permit the insured person to decide whether or not to challenge the insurer’s determination.

12I note that according to Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”), the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process, and it must provide valid or other reasons for the denial. [my emphasis added]. Defining with precision an unsophisticated person is a challenging task; however, the Court’s direction in Smith clearly recognizes that greater accessibility of an insured person to the informational content of the denial notice is of paramount importance and must necessarily account for the variety of persons and backgrounds who may make claims for accident benefits. Accordingly, Smith requires a denial notice to be as specific and accessible as possible to ensure that there is no ambiguity in what they mean when read by an unsophisticated person.

13In my view, this means the notice at the very least should explain what the insured person’s medical conditions are and why for example, those conditions do not justify removal from the Minor Injury Guideline. An individual might not understand why their medical conditions are considered to be minor if they are not provided with more context. By providing this information, the insured person will have a better understanding of the insurer’s determination. It is then that the consumer protection mandate of the Schedule is achieved.

14Therefore, the notice requirements set out in section 44(5) should be strictly construed and the notice should be closely examined to ensure it complies. If the respondent’s notice does not comply with section 44(5), an insurer cannot rely on the severe remedy available in section 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.

The notices of examination were compliant

15I have reviewed the notices of examination and find that they were compliant with section 44(5) of the Schedule as they were clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the IE or dispute it. There are references made to the applicant’s conditions. The notices explain why the applicant is required to attend the IEs. As a result, I agree with the respondent that the circumstances in section 55(1)2 of the Schedule exist.

Were the IEs reasonably necessary

16The respondent submits that the nature of the section 44 IEs was to directly address the applicant’s alleged accident-related impairments. The purpose of the FAE is to assess the applicant’s overall physical abilities in relation to her injuries and her pre-accident employment as a server/bar cart attendant. The respondent scheduled section 44 IEs following receipt of the applicant’s section 25 assessments, which provided new medical diagnoses attributed to the accident.

17It is the respondent’s position that the section 44 IEs have a clear connection to the applicant’s IRB claim. They are to determine if her physical impairments still prevented her from returning to work. There is a plain and logical nexus between the section 44 IEs and her ability to perform the essential tasks of her employment. The respondent’s section 44 IE requests were reasonable.

18The applicant submits that there is nothing in the Schedule or case law, which indicates that an insurer can assess every and all possible contributing factor to an individual’s disability. According to the applicant, since the outset of her claim, her significant accident-related injuries have included her traumatic brain injury, concussion, vertigo, headaches, dizziness, nausea, vision problems, and other associated cognitive deficits. Her physical impairments remain secondary. Moreover, the applicant attended the IEs with the neurologist and psychologist. Both specialists opined that that the applicant is not entitled to ongoing IRBs. It is the applicant’s position that the respondent does not reasonably require any further examinations as they have obtained sufficient opinions to make a determination.

19The applicant is of the view that any further IEs are an attempt on the respondent’s part to bolster their position. The applicant submits that there is no reasonable nexus between the examinations requested and her injuries. The specialities requested by the insurer do not relate to her primary injuries which remain neurological and cognitive in nature. An orthopedic assessment and functional abilities evaluation would not be a reasonable or necessary evaluation of the impairments preventing her from returning to work and determining her entitlement to the IRB.

20In my view, there is a reasonable nexus between her injuries and the IEs. The OCF-3 dated August 24, 2021 noted that she was substantially unable to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident. The duration was listed as 5 to 8 weeks. The applicant was advised that she was entitled to IRBs based on her OCF-3 and was provided with a cheque for the period of July 21, 2021 to September 26, 2021.

21On January 17, 2022, the respondent requested an updated OCF-3 to determine her entitlement to the IRB. The second OCF-3 dated January 19, 2022 noted that she was substantially unable to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident. The duration of her disability was listed as more than 12 weeks. There is a change from the previous OCF-3. On February 19, 2022, the respondent wrote to the applicant and informed her that they wished to conduct IEs. At that point, approximately 30 weeks had passed since the date of loss.

22The third OCF-3 dated June 23, 2022 noted that she was substantially unable to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident. The duration was listed as more than 12 weeks. It is noted that she is unable to engage in exercise and physical activity that she used to enjoy.

23Based on the facts and evidence before me, I find that the IEs are reasonably necessary. There is evidence that the applicant was continuing to have issues and was unable to perform the essential tasks of her employment. Moreover, the length of the duration of her disability increased from 5 to 8 weeks to more than 12 weeks. It would be reasonable to assess why her injuries were taking longer to resolve.

24Furthermore, there is evidence that the applicant has physical injuries. For example, the medical records that were provided to the respondent included information regarding chronic mechanical back pain, bilateral greater trochanteric tendonitis and/or bursitis, left side L5 lumbosacral radiculopathy, musculoskeletal injuries and chronic pain syndrome as a condition contributing to her disability and inability to work.

25The applicant’s pre-accident employment as a waitress/bartender at the golf course was quite physical in nature. Given the information regarding her physical injuries and a change in the duration of the length of her injury, it is reasonable for the respondent to assess this. The FAE would have provided the respondent with information regarding the level of physical work that the applicant could perform by identifying impairments and how they may affect her return to work. This information could have assisted the other assessors in determining her ongoing entitlement to the IRB. The orthopaedic surgeon could have checked her physical limitations and provided a diagnosis.

26I note that the applicant attended her own assessment with Dr. Flor Maria Muniz-Rodriguez, Physical Medicine and Rehabilitation Physician, who diagnosed her with a variety of conditions including chronic mechanical back pain, bilateral greater trochanteric tendonitis and/or bursitis. These are physical conditions. Although the applicant is of the view that her physical injuries are secondary, I find that these are impairments/conditions that can affect her ability to work. As such, it was reasonable for the respondent to request the IEs to assess her. Moreover, it is well accepted that the insurer has an ongoing obligation to assess the condition of an insured person and assess the information it received concerning the person’s condition.

27Given the evidence and duration of her injuries, I find that the there was a nexus between her injuries and the IEs. I am satisfied that the IEs were reasonably necessary.

Section 55(2) of the Schedule

28I now turn to whether I should grant relief to the applicant under sections 55(2) and (3) of the Schedule for the IRB. Section 55(2) of the Schedule permits the Tribunal to allow an insured to apply for dispute resolution despite being non-compliant with section 44. Section 55(3) of the Schedule provides that the Tribunal may impose terms and conditions on any permission granted.

29I decline to exercise my discretion under these sections because the applicant has not put forward a reasonable explanation for her non-attendance at the IEs. I find that the respondent provided her with an explanation as to why the IEs were necessary. Despite that, she chose not to attend and has failed to provide an explanation as to why she did not attend. I find this conduct to be unreasonable.

30Just 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. Refusing to attend the rescheduled IEs frustrated the respondent’s ability to assess the applicant.

31Therefore, the applicant shall not apply to the Tribunal in relation to the IRB.

ORDER

32It is ordered that the applicant is barred from proceeding with her application before the Tribunal.

Footnotes

1. 1The Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 considered the Tribunal’s reconsideration decision of B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT), which in turn applied 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)(“T.F.”). The Court found no basis to intervene as the decision was within the reasonable range of outcomes. In T.F, Executive Chair Lamoureux repeated her comments from M.B. in paragraph 19 in relation to medical and any other reasons.