Citation: E.E. v. TD General Insurance Company, 2023 ONLAT 22-006578/AABS - PI

Licence Appeal Tribunal File Number: 22-006578/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:

E.E

(A minor by her litigation guardian, S.E.)

Applicant

and

TD General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Andrew Franzke, Counsel

For the Respondent:

Tiziana Serpa, Counsel

HEARD:

By Way of Written submissions

OVERVIEW

1[EE], the applicant, was involved in an automobile accident on September 20, 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, TD General Insurance Company, 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 to a hearing because of non-compliance with section 44 insurer’s examinations (“IEs”) per section 55 of the Schedule?

result

3The applicant is not barred from proceeding with her application.

parties’ positions

4The respondent submits that the applicant has failed to attend IEs, which had been scheduled to determine her entitlement to attendant care benefits (“ACBs”) and assistive devices proposed in an OCF-18. It contends that these IEs were “reasonably necessary” pursuant to s. 44(1) of the Schedule and had been rescheduled numerous times due to the applicant’s non-attendance. The applicant failed to attend these scheduled and re-scheduled IEs and did not provide a reasonable excuse for her non-attendance. The respondent further submits that its correspondence and Notices of Examination (“NOEs”) met the statutory notice requirements of s. 44(5) of the Schedule. Given the applicant’s failure to attend these occupational therapy IEs, the respondent submits that it is prejudiced in its ability to adjust the applicant’s claim and address the substantive issues in dispute.

5The applicant does not dispute that she did not attend the IEs. However, she submits that the respondent failed to provide sufficient medical reasons for the proposed IEs, in accordance with s. 44(5) of the Schedule. The applicant cites the reason provided by the respondent, that “[i]t has been more than 19 months since date of loss with no resolution to your impairment. Based on the information on file to date we are unable to determine if all of the benefits and expenses described are reasonable or necessary.” The applicant agues that this reference to the passage of time and an unspecified “impairment” does not meet the respondent’s obligations to provide a legally sufficient notice.

ANALYSIS

Sections 44 and 55 of the Schedule

6Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to evoke its rights to an IE.

7The 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.

8Pursuant to s. 55(1)2 of the Schedule, an applicant shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. Pursuant to s. 55(2), the Tribunal has discretion to permit the application to proceed despite non-compliance and may impose terms of that permission, pursuant to s. 55(3).

Are the IE Notices in compliance with s. 44(5)?

9I find that the respondent did not comply with s. 44(5) of the Schedule. The respondent used the same reason in its requests for IEs for both ACBs and the assistive devices, namely that it had been more than 19 months since the accident, there had been no resolution to the applicant’s impairment, and given “the information on file”, it was unable to determine if the proposed benefits were reasonable and necessary. I agree with the applicant that a reference to the passage of time since the date of loss and an unspecified “impairment”, fails to provide any specific details about the applicant’s medical condition forming the basis of the respondent’s decision. Nor are these reasons clear and sufficient enough to allow an unsophisticated person to make an informed decision on whether to attend the IE.

10The respondent raises the additional argument that the applicant had not raised any issue with the denials or NOEs prior to this preliminary issue hearing. It submits that if the applicant takes issue with the reasons for the IE request, particularly in cases where the applicant had attended prior IEs, the applicant has the opportunity to request further reasons from an insurer. The respondent cites Shen v. Aviva General Insurance Company, 2021 CanLII 120971 (ON LAT), in support of its claim. I do not find the respondent’s argument to be persuasive and do not find that the onus is on the applicant to request additional medical reasons. I further note that prior Tribunal decisions, while instructive, are not binding upon me.

11Rather, I agree with applicant that in order for an insurer to invoke its s.44 right to an IE, it must first provide a legally sufficient notice pursuant to s. 44(5). 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.

12In its reply submissions, the respondent raises an additional argument that the applicant failed to deliver a completed Attendant Care Assessment together with the complete Form 1, and that as such, the reasons provided in its notices reflect the fact that it only had limited medical information.

13I do not find the respondent’s argument to be persuasive. The respondent did not reference this failure to provide necessary documentation in any of its NOEs or in the correspondence relating to the applicable IEs. Instead it submits a previous February 14, 2022 letter which related to the applicant’s removal from the MIG and approval of certain treatment plans. This letter included an additional paragraph stating that if the applicant was applying for ACBs, she must provide a completed Form 1 by March 11, 2022. However, there is no reference to any deficiency of information in any of the correspondence or NOEs after the Form 1 was submitted and the IEs were requested.

14Given that I have found that the notices were deficient, it is not necessary for me to embark on an analysis as to whether the IEs were reasonably necessary ,and whether the applicant had a reasonable explanation for non-attendance.

15For the reasons cited above, I find that the applicant is not barred from proceeding with her application.

ORDER

16The applicant may proceed with her application before the Tribunal.