Licence Appeal Tribunal File Number: 21-006374/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:
Lorraine Stoppard
Applicant
and
Economical Insurance
Respondent
PRELIMINARY ISSUE DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Lorraine Stoppard, Applicant
David Donnelly, Counsel
For the Respondent:
Ray Ramsarran, Representative
Pamela Vlasic, Counsel
HEARD:
By Way of Written Submissions
REASONS FOR DECISION [AND ORDER]
OVERVIEW
1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on December 9, 2016.
ISSUE IN DISPUTE
2Preliminary Issue: The preliminary issue to be decided in writing is:
- Is the applicant barred from proceeding to a hearing for all substantive issues in dispute because the applicant failed to attend an insurer’s examination?
BACKGROUND
3The applicant was involved an automobile accident on December 9, 2016. On May 16, 2019, the applicant requested that the respondent reimburse her for mileage in the amount of $318.40. She incurred transportation expenses in relation to her hip replacement surgery and follow up appointments. On May 18, 2019, the respondent denied payment of the transportation expense because the documentation in its possession did not support that the hip replacement surgery was required as a result of the subject accident.
4The applicant underwent a fourth hip surgery on June 18, 2020. The applicant submitted the report of Dr. James Howard dated February 12, 2021 and asked that the respondent reconsider its position. On April 12, 2021, the applicant submitted additional transportation expenses in the amount of $1,560.00 related to her hip surgery. On April 27, 2021, the respondent denied these expenses on the basis that the documents to date did not support that the hip replacement surgery was a direct result of the accident.
5On May 17, 2021, the respondent informed the applicant that it had re-visited its position on the denied transportation expenses based on the review of Dr. Howard’s report. The respondent provide notice to the applicant that she was to attend an insurer examination (“IE”) to determine if the incurred expenses were related to the injuries caused in the subject accident. On May 20, 2021, the respondent provided notice of an IE to take place with Dr. Jeremy Scott Mackenzie on June 9, 2021.
6On June 2, 2021, the applicant wrote to the respondent and advised that because a treatment plan was not required for mileage expenses, the Respondent had no statutory right to request an examination pursuant to section 44 of the Schedule. The applicant advised that she would not be attending the IE and requested that it be cancelled.
PARTIES’ POSITIONS
7It is the respondent’s position that the applicant was required to submit a treatment plan for her transportation expenses. Moreover, she has the onus to prove that those expenses are reasonable and necessary. It is the respondent’s position that transportation expenses are medical benefits under section 15(1)(g) of the Schedule.
8In the alternative, the respondent submits that it has a right to request an examination as per section 44(1) in the absence of a treatment plan. The applicant had a pre-accident history that was significant for hip pain, including a hip replacement surgery in 2014. The respondent is entitled to determine if the disputed transportation expenses are reasonable and necessary, and for injuries that are a result of the subject accident. This is supported by section 15, 16, 37, 38 and 44 of the Schedule, as well as the Superintendent’s Guideline 04/16 which addresses an “authorized transportation expense.”
9The applicant submits that the respondent has no right to have the applicant attend medical assessments or receive confidential medical information from the applicant unless the specific wording of the Schedule expressly grants such a right. It is the position of the applicant that an insurer can only request section 44 IEs in accordance with the rights given under the Schedule, and that if a right to access is not given to an insurer in the Schedule, then the insurer cannot claim the right by default with the justification being that the Schedule does not forbid it. The applicant submitted that, “s. 38 is the only mechanism in the SABS that can trigger a s. 44 assessment for medical and rehabilitation benefits and that s.44 does not independently allow s. 44 assessment at any time.”
10Moreover, the applicant submits the Schedule does not provide the insurer a mechanism to have the applicant attend an IE to assess whether the OHIP funded treatment is reasonable and necessary. Furthermore, section 38 does not state that an insured person must submit a treatment plan for treatment that it does not require the insurer to pay for, namely, OHIP funded treatment. Nor does section 38 state that an insured person must submit a treatment plan to the insurer for transportation expenses. The applicant also alleges that the respondent’s letter dated May 20, 2021 is deficient and does not comply with the requirements of s. 44(5) of the Schedule.
11The Tribunal must determine the narrow issue of whether the applicant is statute-barred from proceeding with her application for failing to attend the IE. Both parties have raised arguments that are in relation to the substantive issues in dispute, namely whether the applicant was required to submit a treatment plan for her transportation expenses. This is not before the Tribunal at this juncture. This preliminary issue hearing will only the issue that has been outlined in Adjudicator Rai’s Case Conference Report and Order dated November 30, 2022.
LAW
12Section 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.
13The requirements for a notice of examination set out in s. 44(5) of the Schedule are:
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.
14Section 44(9)2. sets out the rules for an in-person IE:
The following rules apply in respect of the examination:
- If the attendance of the insured person is required,
i. the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,
ii. 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
iii. 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.
15Section 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 s. 44, but the insured person has not complied.
16Taking all of 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. To be clear, the respondent must first prove that a Notice of Examination complies with s. 44(5) of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55.
17In 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. The reasons must be clear enough so that the applicant can make a well-informed decision.
18The notice requirements set out in s. 44(5) should be strictly construed and the insurer's notice should be closely examined to ensure it complies. If the respondent’s notice does not comply with s. 44(5), an insurer cannot rely on the severe remedy available in s. 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.
Is the respondent entitled to a request an IE?
19I find that the respondent does have the right to request an IE in respect of transportation expenses as they are medical benefits. Section 15(1)(g) of the Schedule provides that medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant.
20Although not binding, I am persuaded by the reasoning in Joaquim v. Intact Insurance, 2022 ONLAT 20-011042/AABS. The Tribunal found that even when a treatment plan is not required by virtue of the exceptions provided in section 38(2), the expense and benefit must still be reasonable and necessary. Section 44(3) of the Schedule sets out the benefits that are exempt from an IE. I find that the transportation expenses do not fall under this exemption.
21It is a basic principle of statutory interpretation that every word that is found in a statute has been included there for a reason and is intended to have a purpose. Had the legislature intended that the Tribunal exempt transportation expenses from an IE, then it would have been reflected in the legislation. The legislature specifically exempts a benefit payable in accordance with the Minor Injury Guideline, a funeral benefit or death benefit from the insurer’s examination rule in section 44(1). This must be taken as intentional.
22Moreover, by the logic of the applicant, anyone who choses to not submit a treatment plan could effectively bypass the requirement to attend an IE. I do not believe that to be the intention of the legislature as it would frustrate the respondent’s ability to adjust the file.
23Therefore, I find that the respondent may require the applicant to be examined under section 44(1) for purposes of determining whether she is entitled to the medical benefit of transportation expenses.
Are the notices of examination in compliance with s. 44(5)?
24It is well-settled law 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 to either accept or dispute the insurer’s decision at issue. A claim cannot be barred if the respondent failed to provide proper notice as per s. 44(5) of the Schedule.
25On May 17, 2021, the respondent sent a letter to the applicant to advise that they have revisited their position in light of Dr. James Howard’s medical report dated February 12, 2021 and that a section 44 IE would be scheduled to determine if the expenses incurred are related to the injuries due to the accident. The letter states “please accept this as notice that we require you to undergo an examination under Section 44 of the Statutory Accident Benefit Schedule (SABS). Further details of the scheduling of this examination will follow. We will make reasonable efforts to schedule the examination(s) for a day, time and location that is convenient to you.”
26In my view, I am not satisfied that this notice complied with the requirements under section 44(5) of the Schedule. The notice notes the benefits in dispute. The reasons do not mention the applicant’s conditions, which form the basis for the insurer’s decision. I find that the reasons are vague and lack specific details. As such, I find that the notice dated May 17, 2021 was not compliant with section 44(5) of the Schedule.
27On May 20, 2021, the respondent sent a letter to the applicant notifying her that they have made arrangements for the IE. The letter is identical to the May 17, 2021 letter with the addition of the information regarding the assessor, his specialty, date/time/duration of examination and location and instructions for the IE. I am not satisfied that this notice complied with the requirements under section 44(5) of the Schedule. The reasons do not mention the applicant’s conditions, which form the basis for the insurer’s decision. I find that the reasons are vague and lack specific details. The respondent had the opportunity to cure the notice but failed to do so. As such, I find that the notice dated May 20, 2021 was not compliant with section 44(5) of the Schedule.
ORDER
28As I have found the notices of examination to be defective, the preliminary issue is dismissed in its entirety. The application may proceed before the Tribunal.
Released: January 13, 2023
___________________________
Tavlin Kaur
Adjudicator