Licence Appeal Tribunal File Number: 22-009987/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:
Paolina Leo
Applicant
and
Economical Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Tina Lubman, Paralegal
For the Respondent:
Nivedita Misra, Counsel
Written Hearing:
Heard by way of written submissions
OVERVIEW
1Paolina Leo, the applicant, was involved in an automobile accident on September 5, 2020 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, Economical Mutual Insurance Company (“Economical”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issues to be decided as per the Case Conference Report and Order dated June 21, 2023 are:
Is the applicant entitled to a non-earner benefit of $185.00 per week from October 3, 2020 to ongoing because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
Is the applicant entitled to $2,809.56 for chiropractic services, proposed by 101 Physiotherapy in a treatment plan dated September 16, 2020 because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
3The question that is before the Tribunal is a very narrow one. Despite the use of the word entitled in each of the above-noted issues, it is clear that the question is whether the applicant is barred from proceeding with their dispute on each benefit because they failed to attend the insurer’s examination.
4However, I note that the respondent has raised the issue of the applicant’s alleged non-compliance with section 33 of the Schedule, in their submissions. This issue is not properly before the Tribunal. If a party wishes other issues to be added and adjudicated by this Tribunal, they must follow the appropriate procedure, such as filing a motion to add any additional issues. That has not been done in this case. As such, the Tribunal’s preliminary issue decision will not consider any issues outside those identified above.
RESULT
5The applicant is not barred from proceeding with her application.
ANALYSIS
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 section 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:
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 section 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 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.1
12It 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.
13Moreover, 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.
14I 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.
15Accordingly, 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.
16Therefore, 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.
ANALYSIS
OCF-18 in the amount of $2,809.56 for chiropractic services
17The respondent asserts that the NOEs complied with section 44(5) of the Schedule and is seeking an order to bar the above-noted treatment plan due to the failure to attend the IE. I have reviewed the evidence and submissions from both parties, and I find that neither party has addressed this treatment plan. Moreover, the respondent has failed to submit the NOE for this particular treatment plan into evidence.
18As the respondent raised the preliminary issue, it was their onus to prove that the applicant should be barred from proceeding with her application due to non-compliance. It was incumbent upon them to demonstrate to the Tribunal that the NOE was compliant with the Schedule when seeking such a severe remedy. Based on the evidence before me, I cannot determine whether the NOE met the requirements set out in section 44(5).
19The role of an adjudicator is to assess the evidence and apply the law in order to resolve a dispute between parties. Without the evidence that is crucial to making this determination, I am unable to conclude that the applicant should be barred from proceeding with her application due to the alleged section 44 non-compliance. Parties are expected to put their best foot forward to discharge their onus in their hearing submissions. The respondent in this matter has failed to do so. For the reasons above, I find that the applicant may proceed with this treatment plan before the Tribunal.
OCF-18 in the amount of $4,688.38 for psychological services
20I note that both parties have addressed the treatment plan from Dr. Waxer in the amount of $4,688.38 in their submissions. However, the Tribunal did not order a preliminary issue hearing for that treatment plan. Moreover, if there was an error, neither party sought an amendment of the Case Conference Report and Order. As such, I decline to address that treatment plan.
NOE dated September 21, 2021 for the Non-Earner Benefit
21I have reviewed the NOE dated September 21, 2021. The respondent provided sufficient medical reasons and referred to the applicant’s conditions. I find that the notice was compliant with section 44(5) of the Schedule as it was clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the IE or dispute it.
Does section 55(2) apply to the applicant’s claim for the non-earner benefit?
22Section 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.
23The applicant submitted that her father passed away. According to the applicant’s submissions, she was negotiating all of the financial and logistical hurdles due to the sudden and untimely death of her father as well as the management of her personal grief. I am sympathetic to the applicant; however, submissions are not evidence. There is no affidavit that supports this explanation and nor is there any medical evidence. At most, the applicant submitted a card from her father’s funeral.
24Moreover, this explanation was never provided to the respondent until the receipt of the applicant’s written submissions, which is close to two years since his death. It is unclear why the applicant did not communicate this to the respondent earlier. As I noted earlier, the insurer has a duty under s. 44(9)2. to make reasonable efforts to accommodate the insured when arranging the IE. It would be impossible for the insurer to make such efforts to accommodate the insured when it does not know that those efforts are needed.
25Just 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
26The applicant is barred from proceeding with her claim for the non-earner benefit.
27The applicant may proceed with her claim for the OCF-18 in the amount of $2,809.56 for chiropractic services before the Tribunal.
28Except the above, all previous orders remain in force and effect.
Released: July 28, 2023
Tavlin Kaur
Adjudicator
Footnotes
- The Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 considered the Tribunal’s reconsideration decision of B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT), which in turn applied 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)(“T.F.”). The Court found no basis to intervene as the decision was within the reasonable range of outcomes. In T.F, Executive Chair Lamoureux repeated her comments from M.B. in paragraph 19 in relation to medical and any other reasons.