Anghel v. Intact Insurance Company, 2023 CanLII 98430

Anghel v. Intact Insurance Company, 2023 ONLAT 23-000727/AABS-PI

Licence Appeal Tribunal File Number: 23-000727/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:

Edward Anghel

Applicant

and

Intact Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Rajiv Kapoor, Paralegal

For the Respondent:

Nisaa Khan, Counsel

Shivani Mehta, Counsel

Heard by way of written submissions

OVERVIEW

1Edward Anghel, the applicant, was involved in an automobile accident on April 7, 2021, 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, 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 for all of the benefits claimed in this application because the applicant failed to attend an insurer’s examination under section 44 of the Schedule?

RESULT

3The applicant is not barred from proceeding.

ANALYSIS

Background

4The respondent scheduled a total of 13 insurer’s examinations (“IEs”) to assess the applicant’s injuries. It is alleged that the applicant failed to attend the IEs and the rescheduled IEs.

Parties’ positions

5The respondent submits it provided the applicant sufficient notice and reasons for the section 44 IEs. It is the respondent’s position that it required the examinations to determine if the applicant is entitled to the benefits in dispute.

6The applicant submits that the notices for the IEs do not adhere to section 44(5)(a).

The law

7Section 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.

8The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:

i. 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

i. 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

i. 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.

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

i. 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.

10Section 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.

11Given 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.

12To 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

13It 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.

14Moreover, 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.

15I 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.

16Accordingly, 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.

17Therefore, 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.

IE notice dated May 27, 2021 for the Income Replacement Benefit

18I 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 income replacement benefit, it fails to refer to the applicant’s medical conditions. The notice also mentions that there is no medical information on file to support that the applicant suffers from a substantial inability to perform the essential tasks of his pre-accident self-employment. 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. The respondent did not cure this in the subsequent notice. As such, I find that the respondent did not comply with the Schedule.

IE notice dated February 13, 2022 for the OCF-18 in the amount of $2,200.00 for a psychological assessment

19I find that the notice dated February 13, 2022 did not comply with section 44(5) of the Schedule. While the notice notes the type of examination, it fails to refer to the applicant’s medical conditions. The notice also mentions that there is a lack of compelling medical documentation from a health practitioner indicating that the applicant suffered from a psychological impairment requiring treatment. 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.

IE notice dated July 6, 2022 for the OCF-18 in the amount of $3,641.09 for psychological services

20I find that the notice dated July 6, 2022 did not comply with section 44(5) of the Schedule. While the notice notes the type of examination and refers to the type of treatment, it fails to refer to the applicant’s medical conditions. The notice states there is insufficient compelling medical evidence provided by his health practitioner showing that his prior medical condition will not allow for a full recovery under the $3,500.00 limit. However, it is unclear what this condition is. The notice also mentions that there is a lack of compelling medical documentation from a health practitioner indicating that he suffers from a psychological impairment requiring treatment. The notice does not specify the type of information that the respondent requires. The respondent did not cure this notice in the subsequent notice. I find that the respondent did not comply with the Schedule.

IE notice dated May 31, 2023 for the OCF-18 in the amount of $2,200.00

21I find that the notice dated May 31, 2023 did not comply with section 44(5) of the Schedule. While the notice notes the type of examination, it fails to refer to the applicant’s medical conditions. It is unclear what the applicant’s impairments/injuries are and why they do not justify his removal from the minor injury guideline. For example, the respondent references a prior medical condition, but it is unclear what the condition is. I find that the respondent did not comply with the Schedule.

ORDER

22For the reasons above, I find that the applicant may proceed before the Tribunal with his application.

23Except for the provisions contained is this order, all previous orders made by the Tribunal remain in full force and effect.

Released: October 24, 2023

___________________________

Tavlin Kaur

Adjudicator

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.