PRELIMINARY DECISION AND ORDER

Citation: Naji v. Economical Insurance Company, 2023 ONLAT 21-004242/AABS - PI

Licence Appeal Tribunal File Number: 21-004242/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:

Zainab Naji Applicant

and

Economical Insurance Company Respondent

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Zainab Naji, Applicant Nicholas Mester, Counsel Alicia Cacioppo, Law Clerk

For the Respondent: Sandra Reid, Adjuster Suhasha Hewagama, Counsel Venic Watson, Law Clerk

Arabic Interpreter: Mahassen Mahmoud

Court Reporter: Guido Riccioni

HEARD: By videoconference on January 26 and 27, 2023

OVERVIEW

1The applicant was involved in an automobile accident on April 4, 2019 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 insurer and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for a resolution of the dispute.

PRELIMINARY ISSUE

2The only issue that remains to be decided is whether the applicant is barred from proceeding with her claims for medical, rehabilitation and attendant care benefits pursuant to s. 55 of the Schedule for failure to attend the s. 44 insurer examinations ("IEs").

RESULT

3The applicant is barred from proceeding with her claims as she failed to attend the s.44 IEs.

PROCEDURAL ISSUES

Withdrawing substantive issues and format of the hearing

4At the outset of the hearing, the applicant's counsel sought to withdraw the following claims:

i. Form 1 by Amaresh Parikshya dated April 29, 2019 – Attendant Care Benefits in the amount of $1,692.00 per month.

ii. Treatment plan ("OCF-18") by Okell Rehabilitation Services for an Occupational Therapy Assessment in the amount of $2,200.00 dated March 15, 2021, and denied on April 5, 2021.

iii. OCF-18 by Okell Rehabilitation Services for Occupational Therapy in the amount of $3,791.00 dated April 23, 2021 and denied on May 7, 2021.

iv. OCF-18 by Okell Rehabilitation Services for Assistive Devices in the amount of $1,326.74 dated April 23, 2021 and denied on May 7, 2021.

v. OCF-18 by Okell Rehabilitation Services for Occupational Therapy in the amount of $2,679.23 dated July 12, 2021 and denied on July 30, 2021.

vi. Non-earner benefit.

5The respondent objected and submitted that, if the issues were withdrawn so late in the hearing process, the current video hearing should be converted to a written hearing. The applicant submitted that the respondent did not have standing to object to the withdrawal of the issues, nor did the Tribunal have jurisdiction to not allow the issues to be withdrawn.

6I agree with the applicant. The issues listed at para. 3 above which were originally in the applicant's application are withdrawn at the request of the applicant. Next, I order that the hearing proceed by video. The parties agreed that the issue in dispute was mainly related to what information the respondent relied on when it requested that the applicant attend certain IEs. This information is best obtained via the adjuster and the related log notes. A hearing by video will allow the parties to cross-examine Sandra Reid, the current adjuster on the applicant's file, more effectively.

Exclusion of evidence

7The respondent objected to the admission of pages 244 to 255 and 256 to 269 of the applicant's medical brief into evidence. It alleged that it contained OCF-18s that the respondent did not receive before the disclosure of the applicant's evidence and as such, should be excluded. The applicant did not deny the respondent's claim, but argued that this evidence was necessary, as it further showed the applicant's accident-related injuries and admitting the documents would not cause any prejudice to the respondent.

8I agree with the respondent and also find that this evidence is not relevant to the remaining issue before the Tribunal. I will exclude it.

9Next, the applicant sought to rely on the clinical notes and records ("CNRS") of Dr. Mustafa Kamouna, family doctor. The respondent objected to this, as the applicant only provided these records to the respondent in August of 2022. The applicant argued that this evidence captured her complaints at the time of the accident and were relied upon by the Dr. Kamouna when he authored his OCF-3.

10I find that the CNRs should be included in the hearing, as they captured the doctor's observations during his appointments with the applicant and in completing her OCF-3.

ANALYSIS

Factual Background

11The parties agreed to the following facts:

i. The applicant was involved in a motor vehicle accident and applied to the respondent for accident benefits ("OCF-1") on April 16, 2019. She has been represented by counsel since April 2019.

ii. The respondent has paid the applicant an income replacement benefit ("IRB") and benefits in the amount of $3,500.00 or up to the financial limits of the Minor Injury Guideline ("MIG").

iii. The applicant provided the respondent with an OCF-3 authored by Dr. Kamouna, dated May 1, 2019. This OCF-3 was sent on May 21, 2019, however, the respondent did not accept the OCF-3 and requested that the applicant complete the signature and date page. The completed OCF-3 was sent back to the respondent on June 14, 2019. The OCF-3 also noted that the applicant suffered a concussion as a result of the accident.

iv. The applicant submitted an OCF-18 in the amount of $2,220.00 to the respondent, which was denied via letter dated May 15, 2019 ("the May 2019 NOE"). The respondent requested that the applicant attend an IE with Dr. Sanita Sharma, general practitioner. The applicant did not attend this IE.

v. The applicant requested funding for an OCF-18 in the amount of $2,195.00. The respondent denied this OCF-18 via letter dated November 12, 2019, ("the November 2019 NOE") and requested that the applicant attend an IE with Dr. Mohamed Khaled, general practitioner. The applicant did not attend this IE.

vi. The respondent requested that the applicant provide her CNRs on several occasions, which were eventually provided on August 8, 2022.

The Law

12Section 33 of the Schedule states that an applicant shall, within ten business after receiving a request from the insurer, provide the insurer with any information required to assist the insurer in determining the applicant's entitlement to a benefit.

13Section 36(2) of the Schedule states that an applicant applying for a specified benefit shall submit a completed disability certificate with her application under section 32 of the Schedule.

14Section 38(8) of the Schedule states that within 10 business days of an insurer receiving a treatment and assessment plan, it shall give the insured person notice that identifies the goods/services/assessment/examinations described in the treatment and assessment plan that it will pay for or refuses to pay for and provide the medical reasons and all other reasons why said goods/services/assessment/examinations or said costs are not reasonable and necessary.

15Section 38(11) of the Schedule states that if an insurer fails to give notice according to section 38(8) of the Schedule, the insurer is prohibited from taking the position that the insured person has an impairment where the MIG applies. The insurer shall pay for all goods/services/assessments/examinations described in the plan related to the period, starting on the 11th business day after the day the insurer received the plan, and ending on the day the insurer provides a notice that complies with section 38(8) of the Schedule.

16Section 44(1) of the Schedule states that to help an insurer determine if an insured person is or continues to be entitled to a benefit that the insured person applied for under the Schedule, but not more than is reasonably necessary, the insurer may require the insured person to be examined by one or more people, chosen by the insurer, who are regulated health professional or who have expertise in vocational rehabilitation.

17Section 44(5) of the Schedule states that if an insurer requires an IE, it shall arrange for the examination at its expense and give the insured person notice setting out: 1. The medical and any other reasons for the examination; 2. Whether the attendance of the insured person is required at the examination; 3. 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 4. 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

18Section 44(9)2 of the Schedule states that if attendance of the insured person is required at the IE, then: 1. The insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person. 2. 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 3. 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.

19Section 55(1)2 of the Schedule states that an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, 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. Section 55(2) of the Schedule states that the Tribunal may permit an insured person to proceed with their application despite paragraph 55(1)2 of the Schedule.

Parties' Position

20The issue before the Tribunal is whether the applicant may proceed with her application, given that she did not attend the two, above-mentioned IEs. The applicant argued that she was not required to attend the IEs, as the notices provided by the respondent failed to provide sufficient medical and other reasons for the IEs. The applicant also argued that should the Tribunal find the notices sufficient, under section 55(2) of the Schedule, she should be granted permission to pursue her application.

21The respondent argued that the applicant cannot proceed before the Tribunal, as the respondent is entitled to examine her. The respondent submitted its notices of May and November 2019 were valid and sufficient, pursuant to section 44(5) of the Schedule. The respondent submitted that the applicant had not provided compelling information that she suffered a concussion as a result of her accident. It relied on the OCF-1 and Treatment Confirmation Form ("OCF-23") of the applicant, which the respondent submitted showed that she suffered few, if any accident-related injuries, and, said injuries fell within the MIG. This position was also supported by the testimony of Ms. Reid. The respondent also argued that the only evidence that mentioned the applicant's concussion was her OCF-3, and it requested her family doctor's CNRs to confirm this, which were not received until 2022. The respondent also relied on the applicant's previous OCF-3 of Dr. Anil Kaushal, chiropractor, dated April 15, 2019, which indicated that the applicant suffered MIG injuries.

22The respondent submitted that due to the conflicting information and the applicant's failure to provide her CNRs promptly, it was obliged to request IEs to fully understand and assess the applicant's accident-related injuries.

23The applicant relied on the testimony and OCF-3 of Dr. Kamouna, where the applicant's concussion was listed as an accident-related injury. The applicant argued that since the May and November 2019 NOEs did not mention this injury, they did not comply with section 44(5) of the Schedule.

24Dr. Kamouna confirmed that his CNRs indicated that the applicant reported the accident to him, that her car flipped over, and that she suffered a loss of consciousness, body injuries, dizziness, and photosensitivity as a result of it. Dr. Kamouna submitted that he diagnosed the applicant with a head injury, a possible concussion, sprains and strains.

25The respondent submitted that as the doctor did not have a copy of the applicant's Emergency Room ("ER") report or the ambulance call report when filing out her second OCF-3. The doctor relied on her self-reporting and symptoms and so his diagnosis was unreliable, as the applicant had made contradictory reports after her accident indicating she did not lose consciousness. The doctor also confirmed he did not formally diagnose the applicant with a concussion and rather indicated concussion with a question mark next to it and suspected such.

26Both parties relied on M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT), where the Tribunal found that for a denial to satisfy the requirement of detailing the "medical and any other reasons", an insurer must explain its decision and reference the applicant's medical condition and any other applicable rationale based on the unique facts in dispute. The applicant took this case to mean that because the respondent failed to reference her concussion in its NOES of May and November 2019, it did not refer to her "specific medical reasons" and therefore the notices were deficient. The respondent took this case to mean that based on the above-mentioned issues of conflicting information regarding the applicant's related injuries, it provided sufficient information.

27Based on M.B., the applicant submitted that insurers cannot satisfy their obligations under section 44(5)(a) using reasons that are incongruous or contrived. The applicant submitted that the NOEs categorized the applicant's concussion as a MIG injury which is illogical. The applicant also submitted that the NOEs did not reference s. 55 of the Schedule and did not provide the consequences of non-attendance. The applicant also argued that the NOEs failed to mention the right to dispute the denial of the benefit.

28The applicant relied on Varriano v. Allstate, 2021 ONSC 8242, where the Ontario Superior Court of Justice found that "medical and other reasons" require an insurer to provide robust information sharing that allows the insured person to make an informed decision about claiming benefits and filing an appeal. The applicant submitted that in this case, the respondent failed to do so by not mentioning the applicant's concussion.

29The respondent relied on S.C. v Aviva Canada Inc., 2017 CanLII 70684 (ON LAT), where the Tribunal found that an applicant did not attend properly scheduled IEs despite receiving valid NOEs. As a result, the applicant was barred from proceeding because four and a half years had elapsed since her accident, making the proposed IEs unhelpful. The respondent submitted that this matter had similar facts to those currently before the Tribunal and so this case should also be dismissed.

30The respondent submitted that based on the totality of evidence it received at the time of the disputed NOE of May 2019, it did not have a complete copy of the applicant's second OCF-3 and therefore could not address the issue of the applicant's concussion. The respondent submitted that concerning the second NOE of November 2019, given the body of evidence it had, meaning the OCF-18s, previous OCF-3, OCF-1 and OCF-23 that did not list the applicant's concussion, the NOE provides sufficient medical and other reasons. The respondent submitted that the NOE of November 2019 informed the applicant what injuries were listed on her disputed OCF-18 and informed her what information it required from her via its numerous section 33 requests.

Are the Notices of Examination in compliance with s. 44?

Notice of Examination dates May 15, 2019

31I find that the NOE of May 15, 2019, is sufficient and valid for the following reasons. The applicant's OCF-3 was not deemed received in accordance with section 36 of the Schedule by the respondent until June of 2019. Though the respondent had seen the incomplete OCF-3 of Dr. Kamouna, it could not rely on the document until the applicant filled out the signature page of the OCF-3, which would then make it complete and therefore received. Therefore, the respondent could only rely on the OCF-1, OCF-18 and OCF-23, which did not disclose that there was a suspicion of a concussion. As such, the respondent argues that it was not required to note the concussion at the time. After reviewing the NOE of May 15, 2019, I find it complies with section 44(5) of the Schedule.

32In terms of the consequences of the applicant's non-attendance, I agree with the respondent that the NOE of May 2019 was sufficient. In May 2019, when she received the NOE, she was provided with the consequences of her non-attendance then, which, under section 44, were all that was required, as the issue of the applicant's multiple "no-shows" for IEs was not in play.

33The applicant submitted she was not required to attend the IE requested by the May 2019 NOE because the notice did not comply with the Schedule, I find that to be incorrect and that she was required to attend the IE.

Notice of Examination dates November 12, 2019

34In terms of the NOE of November 12, 2019, I find that the notice was valid. Given the inconsistencies in the evidence described above, I find that it was appropriate for the respondent to request the applicant attend an IE. I agreed that as the applicant failed to provide the respondent with any evidence in 2019 to support her non-MIG position beyond the second OCF-3 of Dr. Kamouna, the NOE is valid pursuant to section 44(5).

35I also find that the NOE's medical and other reasons were sufficient, as they provided the applicant with sufficient reasons for the assessment. As noted above in M.B., the NOE of November 2019 needed to refer to the applicant's specific medical condition and any other applicable rationale based on her unique circumstances. Given the issues of inconsistent reporting and continuous requests for CNRs, I find that the NOE addresses the applicant's specific medical and other circumstances for her denial. I agreed with the respondent's position that every alleged injury does not need to be listed in its denial, but rather, the NOE must reasonably address the applicant's situation, which it did in this case.

36I also considered Varriano and given the applicant's circumstances, find that the NOE of November 2019 provided robust information that allowed her to make an informed decision when claiming benefits and filing an application with the Tribunal. I also find that the fact that the respondent did not mention the applicant's concussion had little impact on her decision to not attend the IEs.

37The OCF-3 of Dr. Kamouna in itself is not persuasive that the applicant suffers from an injury beyond the MIG when considered in light of the applicant's circumstances, her OCF-1, first OCF-3, OCF-18s, OCF-23, and Dr. Kamouna's testimony. I find that not specifically listing the applicant's concussion does not invalidate the NOE and that it still complies with section 44(5).

38In terms of mentioning the consequences for not attending, I find the NOE was sufficient. When the applicant received the November NOE, she was provided with the consequences of non-attendance which at that point, under section 44, was all that was required. I find that the applicant was provided with a clear explanation that should she not attend the IE, she may not receive the disputed benefit.

39The applicant submitted she was not required to attend the IE requested by the November 2019 NOE because the notice did not comply with the Schedule, I find that to be incorrect and that she was required to attend the IE.

Should the applicant be permitted to proceed with her application pursuant to s. 55(2) of the Schedule?

40The applicant requested that the Tribunal exercise its discretion under section 55(2) of the Schedule to allow her to pursue her application, despite the May and November 2019 NOEs being found valid. The applicant argued that dismissing her application would be a harsh remedy and requested that the Tribunal stay the matter and allow her to attend the outstanding IEs.

41The respondent submitted that the onus is on the applicant to explain why there was a delay or non-attendance for IEs, as seen in 17-002921 v Aviva Insurance Canada, 2018 CanLII 76416 (ON LAT). In that matter, the Tribunal found that the applicant must provide a reasonable explanation for not attending an IE and the applicant was barred from proceeding because she did not make herself reasonably available for the required assessments.

42The respondent also relied on S.C., where the Tribunal found that the prejudice caused by the delay between the requested IEs and the Tribunal finding a disputed NOE to be valid could not be alleviated due to the lengthy passage of time. It submitted that the applicant in this case is in a similar situation – she has failed to attend IEs and provided no credible, reasonable explanation for doing so. As a result, the respondent argued that it has been deprived of its right to assess the applicant's injuries via IEs and, given that four years have elapsed since the applicant's accident, these assessments will no longer assist it.

43I decline to exercise my discretion under this section for the following reasons. First, the applicant has not put forward a reasonable explanation for her non-attendance at the IEs. Further, I was not provided with a clear explanation for the delay in transmitting Dr. Kamouna's CNRs to the respondent.

44I am persuaded by 17-002921, which dealt with very similar facts to the ones currently before me, where the applicant did not attend IEs due to NOEs which the Tribunal eventually found to be valid. Though I can comprehend the applicant's hesitancy to attend the IEs given her belief that the NOEs were invalid, I also find that she did not make herself reasonably available to be assessed.

45I have considered the impact on the applicant should the Tribunal dismiss her application in light of the prejudice the applicant has caused the respondent by not attending the IEs it requested. I find that the prejudice caused by the passage of time cannot be fixed by having the applicant simply attend IEs in 2023. The applicant allegedly suffered her concussion in 2019 and the respondent was entitled to evaluate the injury at that time. Failing to attend the IEs frustrated the respondent's ability to assess the applicant in this case.

46I am fully cognizant of the ramifications to the applicant's claims for accident benefits and do not make this decision lightly.

COSTS

47The applicant also requested costs in her submissions, due to the respondent's unreasonable, frivolous, vexatious or bad-faith actions during the proceeding, under Rule 19. The applicant submitted she was entitled to costs related to her application, as the respondent did not comply with section 44 of the Schedule, and then forced her to apply to the Tribunal.

48I will not be awarding costs to the applicant. The applicant has not provided persuasive evidence that the respondent's conduct amounted to unreasonable, frivolous, vexatious or bad-faith actions during the proceedings. The applicant's request for costs is dismissed.

ORDER

49The applicant is barred from proceeding with her claim for medical, rehabilitation and attendant care benefits on the ground that the respondent provided the applicant with sufficient notice that it required IEs under section 44 of the Schedule, but the applicant failed to attend them.

50The applicant's request for costs is denied.

51The application is dismissed.