Le v. TD Insurance Meloche Monnex, 2023 CanLII 15062

Le v. TD Insurance Meloche Monnex, 2023 ONLAT 21-013113/AABS - PI

Licence Appeal Tribunal File Number: 21-013113/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:

Lien Le

Applicant

and

TD Insurance Meloche Monnex

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Lien Le, Applicant

Aurora Mancuso, Counsel

For the Respondent:

Bonnie Redden, Claims Specialist

Matthew Owen, Counsel

Written Hearing:

Heard by way of written submissions

BACKGROUND

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 January 13, 2018.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant is prohibited from disputing whether she sustained a catastrophic impairment pursuant to s.55 of the Schedule because she failed to attend a s. 44 insurer’s examination?

RESULT

3The applicant is not statute-barred from proceeding with her application.

Parties’ positions

4The respondent submits that the insurer’s examinations (“IEs”) are reasonably required in order for it to properly evaluate the applicant’s impairments at the time the OCF-19 was submitted. The respondent argues it will be prejudiced if the applicant is not required to attend the IEs. It is the respondent’s view that the applicant must be prohibited from applying to the Tribunal until she attends the IEs.

5The applicant submits that she attended all of the scheduled/rescheduled s. 44 IEs to address the determination of Catastrophic Impairment prior to filing her application with the Tribunal.

LAW

6Section 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.

7The requirements for a Notice of Examination are set out in s. 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.

8Section 44(9)2. sets out the rules for an in-person insurer examination:

(2) 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.

9Section 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.

10Given 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.

11To be clear, the respondent must first prove that a Notice of Examination complies with s. 44(5) of the Schedule in order to rely on it as a basis to seek a statute bar under s. 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.

12It 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.

13The 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.

Are the Notices of Examination in compliance with s. 44(5)?

14The next stage of my analysis will address the Notices of Examination relating to each of the substantive issues set out in the Case Conference Report and Order dated December 28, 2022.

Letter dated October 28, 2021

15On October 28, 2021, the respondent wrote to the applicant to advise her that she did not have a catastrophic impairment. The respondent stated:

Based on our review of the medical documentation on file, inclusive of the Examination by Insurer (section 44) Catastrophic Examination reports dated May 1, 2020 which concluded that you did not fulfill the Statutory Accident Benefits Schedule criteria 1-5, 6, 7, or 8 for catastrophic impairment. As well, the subsequent Catastrophic Examination Addendum Reports dated September 17, did not change the original non- catastrophic designation.

The medical documentation on file does not support that you have sustained an injury or impairment which is under criteria 6, 7 or 8 of the Statutory Accident Benefits Schedule and thus we are requesting a second medical opinion to determine whether your impairment is a catastrophic impairment.

16I find that the notice did not comply with section 44(5) of the Schedule. While the applicant was informed that she would be provided with details of the assessment, the reasons that were provided in this letter do not make any reference to her medical conditions. I also find that the medical reasons are not clear. An individual who is not familiar with the Schedule cannot be expected to understand what the criterion for catastrophic impairments are. The reasons should have been clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. In my view, the respondent should have used plain language to explain its decision especially given that English is not the applicant’s first language.

Notice of examination dated December 10, 2021

17I find that the notice did not comply with section 44(5) of the Schedule. The notice of examination does not contain any medical reasons listed. It fails to refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relies upon. The purpose of the assessment is listed as “CAT OCF-19 dated October 7, 2021”. The nature of the assessment is unclear. The notice fails to specify Dr. Berbrayer’s and Dr. Hasan’s designation/specialty. Therefore, I find this notice to be deficient.

Notice of examination dated May 6, 2022

18I find that the notice did not comply with section 44(5) of the Schedule. The notice of examination does not contain any medical reasons listed. It fails to refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relies upon. The purpose of the assessment is listed as “CAT OCF-19 dated October 7, 2021”. The nature of the assessment is unclear. The notice fails to specify Mr. Kaplun’s and Dr. Hasan’s designation/specialty. Therefore, I find this notice to be deficient.

19As I have determined that the notices were deficient, it is not necessary for me embark on an analysis as to whether or not the IEs were reasonably necessary and whether the applicant had a reasonable explanation for the non-attendance.

20For the reasons above, I find that the applicant is not precluded from applying to the Tribunal.

ORDER

21The applicant may proceed with her application before the Tribunal.