Gail Fuller v. TD General Insurance Company, 2023 CanLII 15073

22-000726/AABS - PI

Licence Appeal Tribunal File Number: 22-000726/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:

Gail Fuller

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Gail Fuller, Applicant

Luke Hamer, Counsel

Chris Jackson, Accident Benefits Manager

For the Respondent:

Darryl McInnis, Adjuster

Sonya Katrycz, Representative

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 that occurred on September 10, 2019.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is:

1. Is the applicant prohibited from proceeding with her application at the Tribunal due to her non-attendance at scheduled insurer’s examinations (“IE”), pursuant to section 55 of the Schedule?

RESULT

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

Parties’ positions

4The respondent submits that the applicant is barred from commencing her application before the Tribunal because of her failure to attend insurer examinations under section 44 of the Schedule. The applicant has rescheduled, cancelled, or otherwise not shown up for a total of 35 insurer examinations. The respondent relies on sections 44(9)(2)(iii) and 55(1)2 of the Schedule, among other legislation and case law in support of its case.

5The applicant disputes the position held by the respondent that she is prohibited from proceeding with her application at this Tribunal due to non-attendance at scheduled insurer’s examinations pursuant to s. 55 of the Schedule. The applicant has always been ready and willing to attend the insurer examinations for which she was given Schedule-compliant notice.

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:

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,

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.

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 for it 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 person’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured person’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 person’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 7, 2022.

Notice of Examination dated February 27, 2020

15I find that the notice did not comply with section 44(5) of the Schedule. While the notice notes the type of examination and refers to the Minor Injury Guideline (“MIG”) determination and medical and rehabilitation benefits, it fails to refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relies upon. Nor does the notice specify Dr. Desai’s speciality. Therefore, I find this notice to be deficient.

Notice of Examination dated June 16, 2020

16I find that the notice did not comply with section 44(5) of the Schedule. The notice refers to the income replacement benefit (“IRB”), however, it did not refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relied upon. Again, there are no medical reasons for examination mentioned. The type of examination is not clearly specified. Rather the respondent has used acronyms such as “IME, FCE-RHP FCE and FCE - RHP JSA”. An average person cannot be expected to know what these acronyms stand for. They should have been specified in the notice. Therefore, I find this notice to be deficient.

Notice of Examination dated August 12, 2020

17I find that the notice did not comply with section 44(5) of the Schedule. It refers to the IRB however, it did not refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relied upon. Again, there are no medical reasons for examination mentioned. The type of examination is unclear. It states “FCE - RHP FCE and FCE - RHP JSA”. An average person cannot be expected to know what these acronyms stand for. They should have been specified in the notice. Therefore, I find this notice to be deficient.

Notice of Examination dated September 17, 2020

18I have not considered this notice as the attendant care benefit has been withdrawn by the applicant.

Notice of Examination dated September 13, 2021

19I find that the notice did not comply with section 44(5) of the Schedule. The notice refers to the IRB however, it did not refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relied upon. Again, there are no medical reasons for examination mentioned. The type of examination is not clearly specified. Rather the respondent has used acronyms such as “IME and FCE-RHP FCE”. An average person cannot be expected to know what these acronyms stand for. They should have been specified in the notice. Therefore, I find this notice to be deficient.

Notice of Examination dated October 20, 2021

20I find that the notice did not comply with section 44(5) of the Schedule. The notice refers to the IRB however, it did not refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relied upon. Again, there are no medical reasons for examination mentioned. The type of examination is not clearly specified. Rather the respondent has used acronyms such as “IME and FCE-RHP”. An average person cannot be expected to know what these acronyms stand for. They should have been specified in the notice. Therefore, I find this notice to be deficient.

Notice of Examination dated November 5, 2021

21I find that the notice did not comply with section 44(5) of the Schedule. The notice refers to the IRB however, it did not refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relied upon. Again, there are no medical reasons for examination mentioned. The type of examination is not clearly specified. Rather the respondent has used acronyms such as “IME and FCE-RHP”. An average person cannot be expected to know what these acronyms stand for. They should have been specified in the notice. Furthermore, the credentials/designations of some of the assessors are not specified. Therefore, I find this notice to be deficient.

Notice of Examination dated November 16, 2021

22I find that the notice did not comply with section 44(5) of the Schedule. The notice refers to the IRB however, it did not refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relied upon. Again, there are no medical reasons for examination mentioned. The type of examination is not clearly specified. Rather the respondent has used acronyms such as “FCE-RHP FCE”. An average person cannot be expected to know what these acronyms stand for. They should have been specified in the notice. Furthermore, the credentials of Dr. Getsos are unclear. Therefore, I find this notice to be deficient.

Notice of Examination dated November 30, 2021

23I find that the notice did not comply with section 44(5) of the Schedule. The notice refers to the IRB however, it did not refer at all to the applicant’s medical condition or the specific provision of the Schedule that it relied upon. Again, there are no medical reasons for examination mentioned. The type of examination is not clearly specified. Rather the respondent has used acronyms such as “IME and FCE-RHP FCE”. An average common person cannot be expected to know what these acronyms stand for. They should have been specified in the notice. Furthermore, the credentials of Dr. Getsos are unclear. Therefore, I find this notice to be deficient.

24As I have determined that the notices were deficient, it is not necessary for me to do an analysis as to whether or not the IEs were reasonably necessary and whether the applicant had a reasonable explanation for her non-attendance.

25For the reasons above, I find that the applicant is not precluded from applying to the Tribunal for failing to attend the IEs.

ORDER

26The applicant may proceed with her application before the Tribunal.