Licence Appeal Tribunal File Number: 22-013966/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:
Lina Blanco
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Harlan Pottins, Counsel
For the Respondent:
Ken Yip, Counsel
HEARD:
By way of written submissions
OVERVIEW
1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule (the “Schedule”) arising out of a motor vehicle accident on July 31, 2013.
PRELIMINARY ISSUE IN DISPUTE
2Preliminary Issues: The preliminary issue to be decided is:
- Is the applicant barred from proceeding with the application on the basis that she failed to comply with section 44 of the Schedule per section 55(1)2 of the Schedule?
RESULT
3The applicant is barred from proceeding with her application.
ANALYSIS
Background
Attendant Care Benefit
4On December 6, 2021, the respondent requested an insurer’s examination (“IE”) to determine the applicant’s ongoing entitlement to the Attendant Care Benefit (“ACB”). The IE was scheduled for January 18, 2022. The applicant could not attend. The IE was rescheduled for May 2, 2022. On May 1, 2022, the respondent informed the applicant she was no longer entitled to the ACB as, according to West Park Assessment Centre, the applicant refused to make herself available for the IE.
Non-earner benefit
5On September 1, 2022, the respondent requested that the applicant attend IEs with Dr. Mathoo, physiatrist, on September 19, 2022, Ms. Linda Cottrell, occupational therapist, on October 24, 2022 and Dr. Naidoo, psychiatrist, on October 28, 2022. The purpose of the IEs was to determine if the applicant continued to suffer a complete inability to carry on a normal life as a result of the accident. On September 22, 2022, the respondent informed the applicant that, following West Park Assessment Centre’s advisory that the applicant failed to attend the IE, they were denying the NEB due to her failure to attend IE and cancelled the remaining IEs.
OCF-18 in the amount of $1,553.72
6On July 26, 2022, the respondent requested that the applicant attend an IE with Dr. Mathoo on September 19, 2022 in relation to this treatment plan. On September 22, 2022, the respondent informed the applicant that, as a result of West Park Assessment Centre’s advisory that the applicant failed to attend the IE, they were maintaining their denial of the treatment plan.
OCF-18 in the amount of $4,371.87
7On February 15, 2022, the respondent requested that the applicant attend an IE with Ms. Cottrell on May 2, 2022 in relation to this treatment plan. On May 1, 2022, the respondent informed the applicant, as a result of West Park Assessment Centre’s advisory that the applicant failed to attend the IE, they were maintaining their denial.
Parties’ positions.
8The respondent submits that they provided sufficient reasons and full details in the notices for each of the insurer examinations (“IEs”). The applicant has failed to attend the scheduled IEs on many occasions without any reasonable explanation. The applicant did not provide any submissions.
The law
9Section 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.
10The 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.
11Section 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.
12Section 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.
13Given 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.
14To 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
15It 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.
16Moreover, 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.
17I 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.
18Accordingly, 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.
19Therefore, 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 notice of examination (“NOE”) dated December 6, 2021 is compliant.
20The NOE for the ACB notes that the respondent would like to determine if the applicant is still entitled to attendant care, or if the amount of the attendant care benefit is appropriate, or both. The respondent requested that the applicant provide a new Assessment of Attendant Care Needs within 15 business days from the date of the receipt of the NOE. In my view, although the respondent did not list the applicant’s medical conditions, they identified the information that they needed to make a determination of whether the applicant is still entitled to the ACB.
21The NOE provided information regarding the assessors. The NOE specified that the applicant’s attendance was required. Information about the date, time and location of the IE is provided. The NOE was clear and sufficient to allow an unsophisticated person to make an informed decision to attend the IE or dispute it because they included all of the information required under section 44(5). The applicant has not put forth any submissions to challenge the sufficiency of the information provided in the NOE. In my view, the NOE complied with the requirements set out in the Schedule.
The NOE dated September 1, 2022 is compliant.
22The NOE for the NEB provided detailed information regarding the applicant’s conditions and impairments. The NOE notes that the applicant has cerebral palsy, humerus fracture (L) and other muscular pain. The NOE also made references to the medical records. For example, the nerve conduction study and EMG study were normal. The applicant’s pain syndrome was found to be purely musculoskeletal with superimposed psychological factors.
23The NOE provided information regarding the assessors. The NOE specified that the applicant’s attendance was required. Information about the date, time and location of the IE is provided. The NOE was clear and sufficient to allow an unsophisticated person to make an informed decision to attend the IE or dispute it because they included all of the information required under section 44(5). The applicant has not put forth any submissions to challenge the sufficiency of the information provided in the NOE. In my view, the NOE complied with the requirements set out in the Schedule.
NOE dated July 26, 2022 for the OCF-18 in the amount of $1,553.72 is compliant.
24The NOE provided detailed information regarding the applicant’s conditions and impairments. The NOE also sets out the information that the respondent requires, such as the decoded OHIP summary from January 1, 2016 to present, clinical notes and records from your psychologist from January 1, 2016 to present and clinical notes and records from Dr. Thi Ngoc Dang Nguyen from September 30, 2021 to present.
25The NOE also provided information regarding the assessors. The NOE specified that the applicant’s attendance was required. Information about the date, time and location of the IE is provided. The NOE was clear and sufficient to allow an unsophisticated person to make an informed decision to attend the IE or dispute it because they included all of the information required under section 44(5). The applicant has not put forth any submissions to challenge the sufficiency of the information provided in the NOE. In my view, the NOE complied with the requirements set out in the Schedule.
NOE dated February 15, 2022 for OCF-18 in the amount of $4,371.87 is compliant.
26The NOE notes that the respondent requires an update on the applicant’s medical status to determine whether the ongoing occupational therapy is reasonable and necessary. The NOE explains that the previous IE had determined that six Occupational Therapy sessions were reasonable and necessary to provide education as well as to facilitate increased participation in daily activities.
27The NOE also provided information regarding the assessors. The NOE specified that the applicant’s attendance was required. Information about the date, time and location of the IE is provided. The NOE was clear and sufficient to allow an unsophisticated person to make an informed decision to attend the IE or dispute it because they included all of the information required under section 44(5). The applicant has not put forth any submissions to challenge the sufficiency of the information provided in the NOE. In my view, the NOE complied with the requirements set out in the Schedule.
Does section 55(2) apply?
28Section 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.
29I 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 as she did not file any submissions.
30Just 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
31For the reasons above, I find that the applicant is barred from proceeding with her application before the Tribunal.
32The application is dismissed.
Released: October 24, 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 [1] 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.