Coladonato v. Aviva Insurance Company, 2023 CanLII 42651

Citation: Coladonato v. Aviva Insurance Company, 2023 ONLAT 22-006427/AABS-PI

Licence Appeal Tribunal File Number: 22-006427/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:

Juliana Coladonato

Applicant

and

Aviva Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Dayana Soto Santana, Paralegal

Moninder Khattra, Counsel

For the Respondent:

Aimee Draper, Counsel

Anthony Naples, Counsel

Heard by way of written submissions

OVERVIEW

1Juliana Coldarato, the applicant, was involved in an automobile accident on March 29, 2019, 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, Aviva Insurance Company (“Aviva”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2Is the applicant barred pursuant to section 55(1)2 from proceeding with her claim for all of the substantive issues in dispute because she failed to attend the insurer examinations (“IEs”) pursuant to section 44 of the Schedule?

RESULT

1. The applicant is barred from proceeding with the non-earner benefit (Issue 3) before the Tribunal.
2. The applicant is not barred from proceeding with the treatment plans for physiotherapy and chiropractic services (Issues 3(a) to (g)) before the Tribunal.

ANALYSIS

3Section 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.

4The 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.

5Section 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.

6Section 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.

7Given 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.

8To be clear, the respondent must first prove that a Notice of Examination complies with section 44(5) of the Schedule in order for an applicant to be statute-barred from proceeding 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.

9It 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.

10Moreover, 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 person to decide whether or not to challenge the insurer’s determination.

11I 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.

12Accordingly, 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 for example, those conditions do not justify removal from the Minor Injury Guideline. 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.

13Therefore, 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 section 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.

The Non-Earner Benefit (Issue [3](i))

14I have reviewed the notices of examination dated April 28, 2021, May 14, 2021, May 20, 2021. I find that they were compliant with section 44(5) of the Schedule as they were clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the IE or dispute it. The respondent notes that it does not have the information that was requested in the July 7, 2020 letter and is unable to determine if the injuries that the applicant sustained have resulted in a complete inability to carry on a normal life. As a result, I agree with the respondent that the circumstances in section 55(1)2. of the Schedule exist.

Physiotherapy services in the amount of $3,497.00 (Issue [3](ii)(a))

15I have reviewed the notices of examination dated December 21, 2020, May 14, 2021 and June 14, 2021 and find that they do not comply with section 44(5) of the Schedule. In my view, the medical reason provided is quite vague. It states that “there appear to be pre-existing or concurrent medical conditions [sic] exist that might affect the patient’s care, treatment and prognosis.” It is unclear what the pre-existing or concurrent medical conditions are. The respondent could have provided some context regarding what these conditions are. The respondent did not cure this notice in the subsequent notices. Therefore, I find the notices to be deficient.

16This treatment plan will proceed to the substantive issues hearing.

17After the treatment plan in the amount of $3,497.00 was denied by the respondent, the applicant submitted additional treatment plans for similar treatment. According to the respondent’s submissions, the applicant was informed that she was barred from disputing the denials because she had failed to attend the IEs.

18The respondent did not provide any evidence or correspondence that corroborates its position in relation to issues 3(b) to (g) listed in the case conference order and report dated March 13, 2023. As the respondent raised the preliminary issue, it was its onus to prove its case as the moving party. I find that it failed to do so.

19Moreover, I note that the respondent submitted the Response by an Insurance Company to an Injured Person’s Application for Auto Insurance Dispute Resolution under the Insurance Act form into evidence (“Response”). The Response notes that the treatment plans listed in issues 3(b) to (f) were denied based on the medical evidence and IEs, which determined that the applicant had reached maximum medical recovery. The treatment plan in relation to issue 3(g) is not mentioned in the Response. There is no reference in the response regarding the applicant being barred due to the failure to attend the IEs.

20As such, issues 3(b) to (g) will proceed to the substantive issues hearing.

Does section 55(2) apply to the applicant in relation to the non-earner benefit?

21I now turn to whether I should grant relief to the applicant under sections 55(2) and (3) of the Schedule for the non-earner benefit. Section 55(2) of the Schedule permits the Tribunal to allow an insured 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.

22The respondent submits that the applicant has failed to establish a reasonable excuse for the prolonged and persistent non-attendance at the IEs. The respondent has rescheduled the IEs on numerous occasions to accommodate the applicant, but she failed to attend without a reasonable explanation. The respondent asserts that it has been deprived the benefit of assessing the applicant within the entitlement period for the non-earner benefit and has been prejudiced from obtaining an opinion regarding the treatment plans.

23The applicant submits that she was uncomfortable attending in-person IEs because of the COVID-19 pandemic. It would be highly prejudicial to her if she were to be barred from proceeding to a hearing.

24I 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 that the respondent accommodated the applicant’s concerns surrounding the pandemic by scheduling virtual IEs. Even so, the applicant did not attend the virtual IEs and she has failed to provide an explanation as to why she did not attend. I find this conduct to be unreasonable.

25Just as much as the insurer has a duty of good faith to adjust the claim and provide the applicant with medical and any 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. Refusing to attend the rescheduled IEs frustrated the respondent’s ability to assess the applicant.

26Therefore, the applicant shall not apply to the Tribunal in relation to the non-earner benefit.

ORDER:

27It is ordered that the applicant is barred from proceeding with the non-earner benefit (Issue 3) before the Tribunal.

28It is ordered that the treatment plans for physiotherapy and chiropractic services (Issues 3(a) to (g)) proceed to a substantive issue hearing before the Tribunal.