Omar v. Aviva General Insurance, 2023 CanLII 91420

Citation: Omar v. Aviva General Insurance, 2023 ONLAT 22-013025/AABS -PI

Licence Appeal Tribunal File Number: 22-013025/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:

Abdillahi Omar

Applicant

and

Aviva General Insurance

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Rajiv Kapoor, Paralegal

For the Respondent:

Maia Abbas, Counsel

Heard by way of written submissions

OVERVIEW

1Abdillahi Omar, the applicant, was involved in an incident on November 30, 2022, 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 General Insurance, 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 the applicant barred from proceeding to a hearing because the applicant failed to attend an insurer’s examination (“IE”) under section 44 of the Schedule?

RESULT

3The applicant may proceed with his application before the Tribunal.

ANALYSIS

Background

The treatment plans for the psychological assessment and psychological services

4On November 26, 2020, the applicant submitted an OCF-18 in the amount of $2,200.00 for a psychological assessment. On December 4, 2020, the respondent denied the treatment plan and requested the applicant attend a psychological insurer’s examination (IE). The psychological IE was scheduled with Dr. Rakesh Ratti for February 10, 2021.

5On February 9, 2021, the applicant submitted an OCF-18 for psychological services in the amount of $4,538.77. On February 11, 2021, the respondent denied the treatment plan and informed the applicant that he was to attend a psychological IE with Dr. Rakesh Ratti that was scheduled for February 10, 2021.

6The applicant did not attend the IE on February 10, 2021. The respondent rescheduled the IE for Monday March 29, 2021. The applicant did not attend this IE. The IE was rescheduled for April 19, 2021.

7On February 10, 2021, the applicant submitted an OCF-18 in the amount of $2,024.13 for a driver reintegration assessment. The respondent denied the treatment plan and scheduled a psychological IE with Dr. Rakesh Ratti on March 29, 2021. The applicant did not attend. The IE was rescheduled on April 19, 2021.

8On March 8, 2021, the applicant submitted an OCF-18 in the amount of $2,200.00 for a chronic pain assessment. The respondent denied the treatment plan and scheduled a medical physician IE with Dr. Michael Hanna on April 6, 2021. The applicant did not attend. Due to the non-attendance, the respondent cancelled the psychological assessment with Dr. Rakesh Ratti scheduled for April 19, 2021 for the other three treatment plans.

Parties’ positions

9The respondent submits that the applicant should be barred from proceeding with his application because he failed to attend a total of four IEs. The applicant submits that the IE notices are not in compliance with the Schedule.

The law

10Section 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.

11The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:

a) 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.

12Section 44(9)2. sets out the rules for an in-person insurer examination:

a) 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. he 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.

13Section 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.

14Given 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.

15To 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

16It 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.

17Moreover, 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.

18I 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.

19Accordingly, 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.

20Therefore, 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.

Notice of IE dated December 4, 2020 for the psychological assessment

21I find that the notice did not comply with section 44(5) of the Schedule. While the notice notes the type of examination and refers to the psychological assessment, it fails to refer to the applicant’s medical conditions or the specific provision of the Schedule that it relies upon. The medical reason provided is that “the medical records previously supplied do not support a need for an assessment with this specialty”.

22However, the respondent did not provide a further explanation as to what was in the medical records that suggests that he does not require a psychological assessment. In my view, this appears to be generic language that the respondent is using. The respondent did not cure this notice in the subsequent notices. Therefore, I find the notice to be deficient.

Notice of IE dated February 11, 2021 for the psychological assessment and psychological services

23This notice is in relation to the treatment plan for psychological services and the psychology assessment. As I noted in the background section, this letter was sent to the applicant a day after the psychological assessment was scheduled with Dr. Ratti. This is problematic because he was not notified in time regarding the fact that the treatment plan for psychological services would also be assessed on February 10, 2021.

24Section 44(6) of the Schedule expressly requires the insurer to give notice of an in-person IE to the insured not less than five business days before the examination unless the parties agree. There is no evidence that the parties agreed to waive the five business days’ advance notice. I am left questioning how the applicant can be expected to attend an IE that was scheduled the day before the notice for it was issued. I find that the respondent did not give proper notice to the applicant in relation to the treatment plan for psychological services.

25Moreover, I find that the notice did not comply with section 44(5) of the Schedule. The medical reasons provided are quite similar to those found in the December 4, 2020 notice. The notice fails to refer to the applicant’s medical conditions or the specific provision of the Schedule that it relies upon. It is unclear what the respondent found in the medical records to come to the conclusion that the psychological assessment and psychological services were not reasonable or necessary. It is unclear whether there is evidence that the applicant doesn’t have psychological impairments or that they have resolved. The respondent did not cure the notice in the subsequent notices. Therefore, I find the notice to be deficient.

Notice of IE dated February 12, 2021 for the driver reintegration assessment

26I find that the notice did not comply with section 44(5) of the Schedule. While the notice notes the type of examination and refers to the driver reintegration assessment, it fails to refer to the applicant’s medical conditions or the specific provision of the Schedule that it relies upon. The medical reason provided is that “the medical records previously supplied do not support a need for an assessment with this specialty”.

27However, the respondent did not provide a further explanation as to why a driver’s reintegration assessment is not reasonable or necessary. It is unclear what the respondent found in the medical records to come to this conclusion. For example, is there evidence that the applicant’s impairments have resolved or that he is able to drive without issues? I note that this identical wording has been found in the other notices as well. It appears that the respondent is using boilerplate language. The respondent did not cure this notice in the subsequent notice. Therefore, I find the notice to be deficient.

Notice of IE dated March 8, 2021 for a chronic pain assessment

28I find that the notice did not comply with section 44(5) of the Schedule. While the notice notes the type of examination and refers to the chronic pain assessment, it fails to refer to the applicant’s medical conditions or the specific provision of the Schedule that it relies upon. The medical reason provided is that “the medical records previously supplied do not support a need for an assessment with this specialty.”

29However, the respondent did not provide a further explanation as to why a chronic pain assessment is not reasonable or necessary. It is unclear what the respondent found in the medical records to come to this conclusion. This raises the question whether there is evidence that suggests that the applicant does not have chronic pain. The respondent should have specified these findings so that the applicant would have a better understanding as to why the treatment plan was being denied. I note that this identical wording has been found in the other notices as well. It appears that the respondent is using boilerplate language. I find this notice to be deficient.

ORDER

30For the reasons above, I find that the applicant may proceed before the Tribunal with his application.

31Except for the provisions contained in this order, all previous orders made by the Tribunal remain in full force and effect.

Footnotes

1. 1The 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.