Licence Appeal Tribunal File Number: 21-008566/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:
Zdravko Milanovic
Applicant
And
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
Adjudicator:
Tavlin Kaur
For the Applicant:
Richard Campbell, Counsel
For the Respondent:
Paul Barnes, Counsel
Heard by way of written submissions
OVERVIEW
1Zdravko Milanovic, the applicant, was involved in an automobile accident on January 7, 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, Intact Insurance Company (“Intact”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding with a claim for catastrophic impairment as the applicant did not submit to an insurer’s examination pursuant to section 55 of the Schedule?
3The question that is before the Tribunal is a very narrow one. However, it should be noted that the parties have addressed other issues in their submissions such as whether the respondent failed to deliver the notice within the timeframe set out in the Schedule. This issue is not properly before the Tribunal. If other issues are to be added, parties 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 will not consider any additional issues.
RESULT
4The applicant is not barred from proceeding with his application.
ANALYSIS
5Section 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.
6The 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.
7Section 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 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.
8Section 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.
9Given 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.
10To 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
11It 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.
12Moreover, 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.
13I 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.
14Accordingly, 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. In my view, 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.
15Therefore, 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 notices of examination (“NOE”) are deficient
16On May 31, 2021, the respondent wrote to the applicant and informed him that they were unable to determine if the injuries that he suffered as a result of the motor vehicle accident were catastrophic. Nine notices of examination dated June 14, 2021 were sent to the applicant for various insurer examinations. Each of the NOEs listed the following reasons for the IEs: To determine if the injuries you sustained in the accident have resulted in impairments that would meet the catastrophic impairment definition.
17On June 15, 2021, the applicant’s counsel wrote to the respondent and informed them that the notice did not provide medical or other reasons. In this letter, the applicant’s counsel also alleges that the respondent failed to serve proper notice within 10 days after receiving the completed OCF-19. On August 24, 2021, the respondent wrote to the applicant to request additional medical records. On August 25, 2021, a second letter was sent to the respondent. In this letter, the applicant’s counsel states that the medical and other reasons are nowhere to be found. On October 5, 2021, the respondent wrote to the applicant regarding the rescheduled psychological IE. The reason provided is “To determine if the injuries you sustained in the accident have resulted in impairments that would meet the catastrophic impairment definition.” The applicant attended the IEs for the orthopaedic, audiology and otolaryngology on December 2, 2021.
18I find that the notices of examination dated June 14, 2021 did not comply with section 44(5) of the Schedule. The NOEs fail to refer to the applicant’s medical condition(s). It is unclear what the applicant’s medical conditions/impairments are. The respondent should have provided some context regarding what these conditions/impairments are so that the applicant could make an informed decision as to whether or not to attend the IEs. The respondent did not cure this notice in the subsequent notice dated October 5, 2021. Therefore, I find the notices to be deficient.
19I am not persuaded by the case law submitted by the respondent. Hardy-MacDonald v. Wawanesa Mutual Insurance Company, 2021 CanLII 50776 (ON LAT) is distinguishable because in that case, the Tribunal found that the requirements in M.B. were satisfied because references to the information that the insurer required were made in the notice. In the notices before me, no such requests were made.
20The respondent submits that in the reconsideration decision in Hardy-MacDonald, prevailing case law did not require specific reference to a medical condition for an insurer’s reasons to be adequate pursuant to s. 44(5) of the Schedule. While that may be true, in the facts before me, the NOEs did not even identify the information about the insured’s condition that the insurer did not have but required. An insurer’s “medical and any other reasons” should, at the very least, 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. In my view, the respondent did not meet either requirement. As such, I find that the respondent did not comply with the Schedule.
ORDER
21For the reasons above, I find that the applicant may proceed to the substantive issue hearing.
Released: July 26, 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.