Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-003382/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:
Sangitaben Mahesuria
Applicant
and
Unica Insurance Inc.
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Julia Viloria Peguero, Counsel
For the Respondent:
Jonathan Heeney, Counsel
Jamie R. Pollack, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Sangitaben Mahesuria, the applicant, was involved in an automobile accident on April 2, 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, Allstate Canada (“Allstate”), 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 to a hearing for this application because the applicant failed to attend an insurer’s examination in relation to issues 1, 2, 3, 4, 5, 6, 7 and 9
Length of the applicant’s submissions
3In its reply submissions, the respondent submits that the Tribunal should not consider the applicant’s submissions because they are beyond the allowable page limits. The respondent did not follow the appropriate process to raise this issue such as filing a motion to address this issue. I note that the respondent’s submissions also exceed the page limit that was ordered. As the respondent’s did not follow the appropriate process, I decline to make any finding on this point.
RESULT
4The applicant is barred from proceeding with issues 5 and 6. The remaining issues will proceed to the substantive issue hearing.
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:
(1) 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.
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 its notice provided 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. 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.
ANALYSIS
Background
16The respondent submits that it promptly requested insurer examinations to address the applicant’s entitlement to income replacement benefits, attendant care benefits and relevant benefits. The respondent has attempted to work with the applicant and her counsel to complete these examinations in a timely manner. However, she has failed to attend the IEs. The proposed IEs were reasonably necessary. The applicant has failed to act reasonably and in good faith by failing to attend the scheduled IEs, and therefore, is in noncompliance with section 44 of the Schedule. The applicant has also failed to provide a reasonable explanation for her failure to attend the required insurer examinations. Finally, the prejudice to the respondent cannot be cured by rescheduling the insurers examinations at this time
17The applicant submits that the Tribunal has to apply a two-pronged test. The first being whether or not the respondent complied with its notice obligations under section 44 such that it can rely on section 55(1)2. The second is whether the requested IE is reasonably necessary. This is the respondent’s burden to meet.
18The applicant asserts that the respondent has not met either prong. The respondent has not provided proper notice for the Section 44 IEs as it failed to provide the required “medical or other reasons” for their requested IEs per s. 44(5)(a) as well as to provide the information required under s.44(5)(c) AND the request is not reasonably necessary given the number of requests.
Issue 1: Income replacement benefit
19I have reviewed the NOE dated October 23, 2020. I find that it did not comply with section 44(5) of the Schedule. The letter fails 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 applicant’s counsel asked for further clarification and the respondent did not provide a proper explanation in my opinion. The respondent failed to cure the defective notice in its subsequent letters to the applicant. Therefore, I find the NOEs to be deficient.
Issue 2: OCF-18 in the amount of $5,262.86 for psychological services
20The applicant submits that the respondent did not provide a notice of an IE for this treatment plan. The respondent disagrees and asserts that a notice was provided in the October 23, 2020 NOE. On August 5, 2020, the respondent sent a letter to the applicant advising her that the treatment plan was partially approved. However, she would need to attend an IE. On October 23, 2020, the respondent sent a NOE to the applicant, which references the August 5, 2020 letter. However, the NOE is in relation to the IRB, not this particular treatment plan. The treatment plan is not mentioned in the NOE. The applicant’s counsel sought clarification. The respondent informed her counsel that their previously sent correspondences informed her of the “medical and any other reason” for the assessment. In my opinion, the respondent did not give a proper explanation. I accept the applicant’s position that the respondent did not provide a notice for this IE. From my review of the evidence briefs, I did not see any notice in relation to this treatment plan. The NOE should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the IE or dispute it.
Issue 3: Is the applicant entitled to the OCF-18 for occupational therapy in the amount of $4,293.34 submitted by Innovative Occupational Therapy denied October 21, 2020?
21I have reviewed the letter dated October 21, 2020. The respondent denied the benefit and informed the applicant that she would have to attend an IE. I have reviewed the NOE dated October 23, 2020 which is referenced in the NOE dated October 23, 2020. I find that it did not comply with section 44(5) of the Schedule. The letter dated October 21, 2020 fails to refer to the applicant’s medical condition(s). It is unclear what the applicant’s medical conditions are. It appears that the respondent is relying on medical information on the file. However, the respondent fails to further articulate exactly what they are relying on in coming to this decision. In my view, this is boilerplate wording that has been used by the respondent. Moreover, the notice is unclear as to which treatment plan is being assessed. It simply refers to “Medical/Rehabilitation-non-MIG” without providing further detail.
22The applicant’s counsel asked for further clarification The respondent informed her counsel that their previously sent correspondences informed her of the “medical and any other reason” for the assessment. In my opinion, the respondent did not give a proper explanation. The respondent failed to cure the defective notice in its subsequent letters to the applicant. Therefore, I find the notice to be deficient.
Issue 4: Is the applicant entitled to the OCF-18 for occupational therapy in the amount of $3,136.87 submitted by Innovative Occupational Therapy denied January 20, 2021?
23On January 20, 2021, the respondent wrote to the applicant with thorough reasons regarding why the treatment plan was being denied. However, it is noted that an IE was not going to be scheduled. On May 4, 2021, the respondent first mentions that the Occupational Therapy In-Home IE was to assess, amongst many things, the treatment plan in the amount of $3,136.87. In my review of the file, the respondent did not schedule an IE for this particular treatment plan. I note that the October 23, 2020 notice refers to an Occupational Therapy In-Home IE. However, I do not believe that this notice would apply to this particular treatment plan as it was denied months after this IE was to take place. Again, the notice simply refers to “Medical/Rehabilitation-MIG” without further clarification. As a result, it is unclear what this notice applies to.
24The letter dated June 3, 2021 notes that the applicant’s attendance was required at an In-Home Assessment on June 2, 2021. The letter states that the applicant was advised of this assessment on April 22, 2021 and April 28, 2021. The letter dated April 22, 2021 mentions that the reason for the examination is for “Medical/Rehabilitation-no-MIG”. The letter does not clearly stipulate that the assessment is for this particular treatment plan. The April 28, 2021 letter does not reference this treatment plan.
25I find that this notice is deficient. The notice is unclear as to which treatment plan is being assessed. The applicant’s counsel asked for further clarification and the respondent did not address her query. The respondent failed to cure the defective notice in its subsequent letters to the applicant. Therefore, I find the notice to be deficient.
Issue 5: Is the applicant entitled to the OCF-18 for physiotherapy in the amount of $1,662.62 submitted by North Park Rehab Centre denied May 31, 2021?
26I have reviewed the notice dated May 31, 2021. I find that complied with section 44(5) of the Schedule. The letter provided thorough reasons as to why the treatment plan was not being approved, and why they needed to examine the applicant. References were made to the applicant’s medical conditions. I disagree with the applicant’s assertion that the notice did not provide any reasons. In fact, the notice directs the applicant to review the enclosed letter, which included all of the reasons. I find that the requirements are section 44(5) are satisfied.
Issue 6: Is the applicant entitled to the OCF-18 for occupational therapy in the amount of $2,037.87 submitted by Innovative Occupational Therapy denied April 28, 2021?
27I have reviewed the notice dated April 28, 2021. I find that it complied with section 44(5) of the Schedule. The letter provided thorough reasons as to why the treatment plan was not being approved and why they needed to examine the applicant. References were made to the applicant’s medical conditions. I disagree with the applicant’s assertion that the notice did not provide any reasons. In fact, the notice directs the applicant to review the enclosed letter, which included all of the reasons. I find that the requirements are section 44(5) are satisfied.
Issue 7: Is the applicant entitled to the OCF-18 for occupational therapy in the amount of $4,778.03 submitted by Innovative Occupational Therapy denied September 14, 2021?
28I have reviewed the letter dated September 14, 2021. The respondent denied the treatment plan because she did not attend the previously scheduled in-home occupational therapy IEs in relation to other occupational therapy treatment plans. The applicant alleges that no IE was scheduled for this particular OCF-18. I have reviewed the evidence and note that an IE was not scheduled for this particular treatment plan. Since there was no IE set for this treatment plan, there is no failure to attend. Therefore, section 55(1)2 is not triggered.
Issue 9: Is the applicant entitled to the denied portion of the OCF-18 for the Catastrophic Assessments in the amount of $14,012.00 submitted by OMEGA Medical denied August 5, 2020?
29The applicant submits that she was never provided with a NOE for this treatment plan and that it cannot be part of the preliminary issue. I have reviewed the submissions and evidence and did not find any notice or submissions that pertain to this treatment plan. As such, this treatment plan may proceed to the substantive issue hearing.
Does s. 55(2) apply to issues 5 and 6?
30Section 55(2) of the Schedule permits the Tribunal to allow an insured person to apply for dispute resolution despite being non-compliant with s. 44. Section 55(3) of the Schedule provides that the Tribunal may impose terms and conditions on any permission granted.
31I 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
32For the reasons above, it is ordered that issues 1, 2, 3, 4, 7 and 9 will proceed to the substantive issue hearing.
33It is ordered that issues 5 and 6 are barred from proceeding because she failed to attend the IEs for which there was a Schedule-compliant notice.
34Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full 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.