Licence Appeal Tribunal File Number: 21-013815/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:
Roksana Akter
Applicant
and
Intact Insurance
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Roksana Akter, Applicant
Fawad Siddiqui, Counsel
For the Respondent:
Jonathan Wong, Counsel
Heard by way of written submissions
OVERVIEW
1Roksana Akter, the applicant, was involved in an automobile accident on October 13, 2017, 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, Intact Insurance (“Intact”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant barred from proceeding to a hearing for the income replacement benefit because the applicant failed to respond to the respondent’s section 33 request for information?
3Is the applicant barred from proceeding to a hearing for medical benefits for chiropractic services because the applicant failed to attend an insurer’s examination?
NOTICE OF MOTION TO STRIKE
4On January 23, 2023, the applicant filed a notice of motion to strike the respondent’s reply submissions in relation to the preliminary issue hearing.
RESULT
5The applicant’s motion to strike the respondent’s reply is denied.
6The applicant is not statute-barred from proceeding with her application.
ANALYSIS
Notice of Motion
7The applicant filed a notice of motion to strike the respondent’s submissions for being filed a day late. The applicant’s submissions were due on January 18, 2023. The respondent had three business days to file the reply after receipt of the applicant’s submissions. However, the applicant filed her submissions a day earlier on January 17, 2023. The respondent filed the reply submissions on January 23, 2023. As such, the reply submissions were a day late.
8The respondent acknowledges the inadvertence. I have reviewed the Case Conference Report and Order. I find the wording might create some confusion with respect to the submission deadlines. The applicant has not provided any submissions as to how allowing the reply to be submitted would be prejudicial to her case. Moreover, the reply submissions were served within the timeframe set out in the Case Conference Report and Order.
9Rule 3.1 of the Tribunal’s Common Rules of Practice & Procedure calls for a liberal interpretation and application of Tribunal rules, which “may be waived, varied or applied on the Tribunal’s own initiative, or at the request of a party, to facilitate a fair, open and accessible process and to allow effective participation by all parties…[and] ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal…”
10I find that it would be procedurally unfair to the respondent to strike the reply submissions due to a technical breach. Allowing the reply submissions will not prejudice the applicant. As such, the applicant’s motion to strike the reply submissions is denied.
Parties’ positions regarding the preliminary issues
11The respondent submits that in accordance with section 33(6) of the Schedule, no income replacement benefits are payable as the applicant has not complied with its section 33 request for documents. The respondent also asserts that the applicant should be barred from proceeding to a hearing due to non-attendance at the insurer’s examinations (“IEs”). The respondent submits that the notices of examination complied with section 44 of the Schedule and that the IEs were reasonable. The respondent argues it will be prejudiced if the applicant is allowed to proceed to a hearing.
12The applicant submits that neither she nor her counsel were aware of the existence of the section 33 request. With respect to the non-attendance at the IEs, the applicant submits that she is willing to attend the section 44 IEs. The applicant did not provide any submissions in relation to the non-attendance at the IEs.
ANALYSIS
Issue #1 will proceed to the substantive issue hearing
13The respondent is seeking a determination on the applicant’s alleged failure to respond to the section 33 request for information in relation to the income replacement benefit. This is not a true preliminary issue because the applicant’s purported non-compliance does not dispose of the application. Rather, section 33(6) only provides that the respondent is not liable to pay a benefit in respect of any period during which the insured fails to comply with a valid section 33 request for information. Section 55(1) of the Schedule sets out the circumstances where the Tribunal may restrict an application from proceeding. In my view, section 33 non-compliance does not fall within the categories that have been set out in section 55(1).
14As the matter will be proceeding to the substantive issue hearing, I find that it would be more practical to have this issue addressed together with the substantive issues. I believe that this is an appropriate approach as opposed to having issues that pertain to the income replacement benefit heard separately.
15It is ordered that issue #1 listed in the Case Conference Report and Order dated January 16, 2023 will be heard along with the substantive issues.
Issue #2: The applicant is not barred from proceeding to the Tribunal due to non-attendance at the IEs
16Section 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.
17The 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.
18Section 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.
19Section 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.
20Given 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.
21To be clear, the respondent must first prove that a Notice of Examination complies with section 44(5) of the Schedule in order to statute-bar an applicant 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.
22It 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.
23Moreover, 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 to decide whether or not to challenge the insurer’s determination.
24I 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.
25Accordingly, 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. This means the notice at the very least should explain what the insured person’s medical conditions are and why those conditions do not justify removal from the MIG. 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.
26While neither party presented this case, I note that in the recent decision of the Court of Appeal for Ontario, Varriano v. Allstate Ins. Company of Canada, 2023 ONCA 78, a medical reason for a denial does not have to be provided if there was no medical basis for the denial at issue. However, where there is a medical basis for a denial, then in my view, medical reasons should be provided.
27Therefore, 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 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)?
Notice of examination dated June 11, 2018 in relation to the treatment plan in the amount of $1,970.00
28I find that the notice did not comply with section 44(5) of the Schedule. It fails to refer to the applicant’s medical condition(s) or the specific provision of the Schedule that it relies upon. The medical reasons provided are: “based on medical information on file, injuries fall within the Minor Injury Guideline. Treatment has previously been approved the Minor Injury Guideline limit of $3500.”
29I find this to be insufficient because it does not provide any further context or explanation as to what the medical information on file says about her injuries. It is unclear what her injuries are. The letter notes that the OCF-18 and medical documentation were reviewed and compared against the criteria in the MIG. But the notice fails to further articulate how the respondent came to the conclusion that the applicant’s injuries are within the MIG. A sentence explaining this would have been useful given that the respondent had information that it was relying on.
30The notice also mentions that there is insufficient compelling evidence which indicates that the applicant has a pre-existing condition but does not identify the medical evidence that the respondent requires. Therefore, I find this notice to be deficient.
The respondent cured the notice (Letter dated June 21, 2018)
31On June 13, 2018, the applicant’s legal counsel wrote to the respondent. He informed them that they were objecting to the section 44 IE because it was scheduled to address the applicability of the MIG. According to the applicant’s legal counsel, there is no provision in the Schedule that permits an evaluation under section 44 of the MIG. As such, the respondent was informed that applicant was not going to attend the IE.
32On June 21, 2018, the respondent responded to the letter that was sent to the applicant’s counsel. In this letter, the respondent referenced the IE that was scheduled for June 25, 2018. The respondent went into great depth to describe the applicant’s conditions as well as the sections that it was relying on. In my view, this letter cured the defective notice of examination. Despite the explanation that was provided, the applicant did not attend the IE.
33On July 4, 2018, the respondent sent a letter to the applicant informing her about the rescheduled IE. On July 10, 2018, the applicant’s legal counsel wrote to the respondent. He informed them that they were objecting to the section 44 IE because it was scheduled to address the applicability of the MIG. According to the applicant’s legal counsel, there is no provision in the Schedule that permits an evaluation under section 44 of the MIG. As such, the applicant was not going to attend the IE. The applicant did not attend the rescheduled IE.
34In my view, the applicant had a duty to attend the IE. Although the first notice was defective, the letter that followed provided detailed reasons. There was enough information for the applicant in the letter to make an informed decision. The applicant did not provide submissions in relation to the non-attendance at the two IEs. I find that the applicant was non-compliant with section 44.
Non-attendance at the IE in relation to the treatment plan in the amount of $1,747.20
35The respondent provided submissions and evidence in relation to the applicant’s non-attendance at the IE in relation to a treatment plan in the amount of $1,747.20 for an assessment and therapy. It should be noted that this issue is not properly before the Tribunal. This issue is not outlined in the Case Conference Report and Order (“CCRO”).
36In fact, the CCRO dated January 16, 2023 notes that the preliminary issue is in relation to chiropractic services. Under the substantive issues section in paragraph 3, there is only one treatment plan in the amount of $1,970.80 for chiropractic services. The treatment plan in the amount of $1,747.20 is not listed in paragraph 3.
37Moreover, the respondent did not bring a motion to add this issue to the preliminary issue hearing. As such, I have not adjudicated this issue as it is not properly before the Tribunal.
Does section 55(2) apply to the applicant?
38I now turn to whether I should grant relief to the applicant under ss. 55(2) and (3) of the Schedule with respect to the MIG determination and medical and rehabilitation benefits. Section 55(2) of the Schedule permits the Tribunal to allow an insured person 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.
39I 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 this to be unacceptable. Just as the insurer has a duty in good faith to adjust the claim and provide the applicant with the medical and 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. Failing to attend the rescheduled IEs frustrated the respondent’s ability to assess the applicant.
ORDER
40It is ordered that the applicant’s notice of motion to strike the reply submissions is dismissed.
41It is ordered that Issue #1 listed in the CCRO dated January 16, 2023 will be heard at the substantive issue hearing.
42It is ordered that the applicant is barred from proceeding with her claim for the treatment plan in the amount of $1,970.80 for chiropractic services.
Released: March 28, 2023
___________________________
Tavlin Kaur
Adjudicator