Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-013392/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:
Azhar Ali
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Haider Bahadur, Counsel
For the Respondent: Michael Chadwick, Counsel
HEARD: By way of written submissions
OVERVIEW
1Azhar Ali (the "applicant") was involved in an automobile accident on July 30, 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 Aviva Insurance (the "respondent") and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2For context, the applicant's case is focused exclusively on technical and procedural arguments which claim the respondent failed to comply with notice provisions set out in sections 36(4), 38(8), and 44(5) of the Schedule. The applicant's submissions assert it is not necessary for the Tribunal to determine if the disputed benefits are reasonable and necessary and go on to confirm his submissions do not address the reasonableness and necessity of the benefits he claims because it is irrelevant to his notice arguments.
ISSUES
3The issues in dispute are:
i. Are the applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline ("MIG") limit?
ii. Is the applicant entitled to a non-earner benefit ("NEB") of $185.00 per week from July 19, 2022, to date and ongoing?
iii. Is the applicant entitled to chiropractic services in the amount of $2,891.12, proposed by Natural Touch Rehabilitation in a treatment plan ("OCF-18") dated July 6, 2022?
iv. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant remains in the MIG and is not entitled to the disputed OCF-18 or interest on this medical benefit. The NEB is payable in accordance with section 12(3) of the Schedule, starting on January 27, 2022. The respondent is not liable to pay an award.
PROCEDURAL ISSUES
The respondent raises procedural fairness issues about the applicant's notice arguments
5I find the applicant may rely on his notice arguments.
6The respondent submits that the applicant is improperly challenging the sufficiency of the respondent's notices before the Tribunal because this was not raised at the case conference and does not appear as an issue in dispute in the case conference report and order ("CCRO") for this matter. The respondent relies on Hayles v. Certas Home and Auto Insurance Company, 2023 CanLII 84366 ON LAT ("Hayes") to show it is procedurally unfair for the applicant to unilaterally add an issue in his written submissions and expect it to be decided by the Tribunal.
7The applicant, in his reply, relies on M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 ON LAT ("M.B.") to show that the applicant's compliance with the respondent's IE requirements does not waive the applicant's right to contest the sufficiency of the respondent's IE notices. The applicant's reply also asserts that the disputed issues are purposely articulated broadly in the CCRO so parties can bring forward any manner of argument to support their positions.
8I reject the respondent's position that the applicant unilaterally added issues to the dispute. In my view, the notice deficiencies raised by the applicant constitute arguments to support the applicant's claims and are not additional issues per se. The applicant provides an example of this in his reply: "The position of the Applicant is that he is entitled to NEB because (a) the Respondent has failed to comply with s.36(4), thereby (b) triggering its "shall pay" obligation in s. 36(6). This being the case, application of the Notice Argument … neither constitutes an 'additional issue,' nor does it "offend the principles of procedural fairness.'" I agree.
9While I recognize Hayles treats notice arguments as an issue, I am not bound by this decision and, from this narrow contextual perspective, disagree with its premise. Further, Hayles does not assist here because paragraph 2, as cited in the respondent's submissions, offers no analysis of why the Tribunal distinguished the notice arguments as issues, which, in my view, is the deep issue here. I therefore see no procedural fairness issues with the applicant's approach to advocating its position and allow the applicant to rely fully on his notice arguments.
The respondent contests the length of the applicant's submissions and vice-versa
10I find both parties may rely on their written submissions as filed with the Tribunal.
11The respondent submits the applicant's submissions far exceed the 10-page limit set by the Tribunal in the CCRO and specifies three extra pages of single-spaced endnotes that articulate arguments on multiple authorities and point to tabs with additional analysis. The respondent requests that none of the analysis set out in the endnotes be considered.
12The applicant argues that the respondent ought to have raised its concerns about submission length via a motion and not as part of its submissions. The applicant maintains that the endnotes to his submissions include citations and convenient case law excerpts, and that any arguments or analysis advanced in those endnotes is minimal. The applicant adds that any tabs with additional analysis are an optional consideration. The applicant's reply counters with a request to apply the same principle relied upon by the respondent to strike the last three pages of its submissions because they exceed the 10-page limit ordered by the Tribunal.
13In my view, endnotes that serve to reference the page number and tab location of evidence and authorities cited in submissions are exclusive of the submission page limit. This is made out at paragraph 9(i) of the CCRO. While I agree that any additional analysis or arguments offered within endnotes or tabs would constitute submissions and be therefore subject to the page limit ordered by the Tribunal, I find the respondent's submissions failed to direct me to specific examples of embedded arguments or analysis to consider. As such, I decline to order the relief sought by the respondent.
14Similarly, I decline to strike the last three pages of the respondent's submissions as requested by the applicant. This is because the applicant's reply essentially takes the position that, on principle, the respondent should be subjected to the same sanctions applied to the applicant—no claims of prejudice owing to the extra three pages were raised in the applicant's reply. Given that I applied no sanctions to the applicant's submissions, I see no reason to apply sanctions to the respondent's submissions.
ANALYSIS
The applicability of the MIG
15The MIG applies to the applicant's claim.
16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."
17The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
18The applicant provides no submissions on why he should be removed from the MIG. He fails to lead evidence as to whether his accident-related injuries fall outside of the MIG, or whether he meets the pre-existing condition exclusion at section 18(2) of the Schedule. Similarly, the applicant raises no arguments or evidence about accident-related chronic pain with functional impairment or psychological impairment arising from the accident.
19The respondent offers only that the applicant failed to provide medical evidence as to whether he sustained a non-minor injury.
20The onus of proof lies with the applicant to show he should be removed from the MIG. I find the applicant cannot meet his onus in this case because he fails to provide submissions and lead evidence. I am therefore persuaded that the applicant should remain in the MIG.
The applicant's entitlement to an NEB
Substantive arguments and evidence
21The applicant has not established he is entitled to an NEB per section 12(1) of the Schedule.
22Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 ("Heath"), which generally focuses on a comparison of the applicant's pre- and post-accident activities.
23The applicant provides no submissions on his substantive entitlement to an NEB per section 12(1) of the Schedule. He fails to identify the activities in which he normally engaged before the accident or lead evidence to demonstrate he sustained an accident-related impairment that continuously prevents him from engaging in those activities. The applicant's submissions offer no comparative analysis or evidence of the applicant's pre and post-accident activities.
24The respondent argues that the applicant is not eligible for an NEB. The respondent relies on the section 44 Insurer's Examinations ("IE") completed as a multidisciplinary assessment by Dr. Deborah Rabinovitch (physiatrist), Dr. Velan Sivasubramanian (psychiatrist), and Mr. Nicholas Liviadas (occupational therapist) in July 2022 to show the applicant falls short of the NEB test at section 12(1) of the Schedule.
25The onus of proof lies with applicant to show entitlement to an NEB. I find the applicant cannot meet his onus in this case because he fails to provide submissions and lead evidence to support his NEB claim. I am therefore persuaded that the applicant is not entitled to an NEB based on substantive entitlement; however, as I set out below, I find the respondent's non-compliance with the Schedule's notice provisions entitle the applicant to an NEB.
Procedural arguments and evidence
26The applicant has demonstrated that the respondent provided a deficient IE notice under section 44(5) of the Schedule and is therefore entitled to the relief at section 36(6) of the Schedule.
27Section 44(5) of the Schedule deals with examinations required by the insurer. It states that the insurer shall give the insured person a notice that sets out: (a) the medical and any other reasons for the examination; (b) whether the attendance of the insured person is required; (c) the name, profession, and title (i.e., designation or speciality) of the professional conducting the examination; and (d) the day, time, and location of the examination if the insured person is required to attend.
28Section 36(4) of the Schedule deals with claims for specified benefits, such as the NEB in this dispute. It compels an insurer, within 10 days after it receives an application ("OCF-1") and completed disability certificate ("OCF-3"), to either: (a) pay the specified benefit; (b) give a notice to the applicant that explains the medical and any other reasons why the insurer denies the applicant's entitlement to the specified benefit and, if applicable, advising the applicant of the requirement for an IE under section 44; or (c) send a request for more information per section 33(1) or (2) of the Schedule.
29Section 36(5) of the Schedule specifies the courses of action an insurer must take within 10 days of the applicant's compliance with a section 33 request for information: (a) pay the specified benefit or (b) give the applicant a notice per section 36(4)(b). Both sub-sections (4) and (5) of section 36 are to be read in concert with section 36(6) of the Schedule, which provides that failure to comply with section 36(4) compels the insurer to pay the specified benefit. The payment period starts on the day the insurer received the OCF-1 and OCF-3 and ends on the day the insurer provides proper notice per section 36(4)(b).
30The applicant submits that the respondent's IE notice of March 17, 2022, does not comply with section 44(5) of the Schedule. The applicant explains that this is because the rationale provided for the IE (i.e., that the impairments identified in the OCF-3 do not appear to be directly caused by the accident) is unsupported and is therefore a "limited, non-specific explanation" that is incapable of meeting section 44(5) requirements—and specifically the obligation to provide the medical and any other reasons for the examination—when considered in the context of Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 ("Tomec") and 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 ON LAT ("Aviva"). The applicant adds that the respondent's requirement for pre- and post-accident medical records fails to support the reasonableness and necessity of the required IEs.
31The applicant goes on to claim the respondent nullified its section 33(1) request for information in its denial notice of February 3, 2022, because the respondent subsequently required the applicant to attend IEs. The applicant explains, at paragraphs 23 and 24 of his submissions, that since section 36(5) of the Schedule applies to the respondent's request for further medical information under section 33(1) of the Schedule, the respondent has only two avenues of response available to it, which are triggered only after the applicant complies with the request: pay the benefit or provide the section 36(4)(b) notice. The applicant explains that since the respondent continues to claim the applicant has failed to comply with its request for information under section 33(1), the response options at section 36(5) have not yet been triggered and thereby precludes the respondent from requiring an IE.
32The applicant's submissions rely on what he describes as "substantively identical notice arguments" in Taksali v. Aviva Insurance Company, 2023 CanLII 96347 ON LAT ("Taksali"); Taksali v Aviva Insurance Company, 2024 CanLII 128 ON LAT ("Taksali-R"); and Zafar v Intact Insurance Company, 2024 CanLII 125 ON LAT.
33The respondent argues that its February 2022 notice complies with section 36(4) of the Schedule, and that the reasons given in March 2022 for seeking the IE are "perfectly adequate" given that the applicant did not respond to the earlier section 33(1) request made in February 2022. The respondent adds that multiple subsequent requests for this information were made to the applicant up to July 2022, and that no medical productions were provided until September 2023 after the case conference for this matter. The respondent maintains it can require an IE despite the applicant's non-compliance with section 36(5) of the Schedule, and that without medical records, a determination as to whether the test for NEB entitlement is met cannot be made.
34I find that the respondent's March 2022 IE notice is deficient. Both the applicant and respondent agree the reason offered for the IE was:" The impairments identified in the OCF-3 dated September 1, 2021 received on February 3, 2022 do not appear to be directly caused by the accident." The notice also explains that the respondent requires a copy of the applicant's pre- and post-accident medical records. In my view, this rationale does not meet the standard set out in 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 ON LAT ("Aviva"). Aviva establishes that: "… 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." While the respondent indicates that the applicant's impairments did not appear to be directly caused by the accident, it failed to explicitly provide a basis for this opinion and thereby did not offer its explanation in any way that allowed an unsophisticated person to understand or make an informed decision about how to respond.
35After all, the OCF-3 completed by Dr. Oral Okem (chiropractor) attributes the applicant's disability (i.e., suffering a complete inability to carry on a normal life) to impairments in his physical functionality (i.e., limitations in sitting, standing, walking, bending, kneeling, squatting, stooping, reaching, lifting, carrying, pushing, and pulling) that resulted from accident-related sprains and strains of the applicant's entire spine, shoulders, and knees as well as a possible lesion or tendonitis of his right rotator cuff. Given Dr. Okem's opinion, the respondent's notice ought to have disclosed why it appeared the applicant's impairments were not directly accident related. The respondent's IE notice should have also identified the missing information about the insured's condition it required to ascertain if the impairments were directly related to the accident. In my view, it is not sufficient to broadly refer to "pre- and post-accident medical records" in this context. The respondent cannot rely on the list of documents it provided in its February 2022 notice (i.e., a decoded OHIP summary, hospital records, family doctor's records, police report, a copy of the accident benefits file for a previous accident, and an activities questionnaire) because its submissions do not point me to where the March 2022 IE notice refers the applicant to this list in the February 2022 notice.
36Even if I agreed the applicant ought reasonably to have known that the pre and post-accident medical records requested in the March 2022 IE notice were the same as those requested a month earlier in the February 2022 notice, I would still make a finding of deficiency because the applicant's ability to provide informed consent is frustrated by the absence of the disclosure period—save for the police report and arguably the accident benefits file—sought by the respondent for each record. In fact, the respondent's request reminder letter dated April 29, 2022, is the first and seemingly only instance where periods were specified for records requested under section 33(1) of the Schedule.
37Taken together on a balance of probabilities, I find the evidence supports the applicant's position that the respondent's March 2022 IE notice is deficient, in that "it failed to provide the medical and any other reasons for the examination as required by section 44(5) of the Schedule. In my view, when read together, sections 44(5)(a) and 36(4)(b) harmonize to trigger section 36(6). Both sections 36 and 44 require the respondent to support its actions with "medical and any other reasons."" Because the respondent availed itself of section 36(4)(b) to require an IE under section 44(5), it inextricably committed to section 36(6) if it failed to comply with section 44(5)(a). I therefore agree that the provisions set out at section 36(6) of the Schedule apply. This means the respondent is obligated to pay the applicant's NEB claim of $185.00 per week, starting on January 27, 2022, when the respondent received the OCF-1 and OCF-3 according to its February 2022 notice."
38Given my findings and the operability of section 36(6), there is no need to consider the other aspects of the applicant's procedural arguments concerning his NEB claim.
The applicant's entitlement to the disputed OCF-18
Substantive arguments and evidence
39The applicant has failed to show he is entitled to the disputed OCF-18 for chiropractic services dated April 14, 2022.
40For context, the parties agreed at the case conference that the disputed OCF-18 was dated July 6, 2022. However, their submissions consistently refer to an OCF-18 dated April 14, 2022, and received on April 19, 2022. The OCF-18 in evidence is dated April 14, 2022. I therefore conclude that the parties meant to dispute the OCF-18 dated April 14, 2022, and have proceeded accordingly on this basis.
41To receive payment for a treatment and assessment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
42The applicant provides no submissions on the reasonableness and necessity of the disputed OCF-18 for chiropractic services. He fails to lead evidence pertaining to treatment goals, their ability to be met by the proposed interventions, and the reasonableness of the costs.
43The respondent argues that the applicant provides no medical evidence as to the "reasonable necessity" of the disputed OCF-18.
44The onus of proof lies with applicant to show the disputed OCF-18 is reasonable and necessary. I find the applicant cannot meet his onus in this case because he fails to provide submissions and lead evidence to support his claim to this medical benefit. I am therefore persuaded that the applicant is not entitled to the disputed OCF-18.
Procedural arguments and evidence
45I find the applicant has not established that the respondent's notices pertaining to the OCF-18 are deficient.
46Section 38(8) of the Schedule deals with claims for medical and rehabilitation benefits. It compels an insurer, within 10 days after it receives an OCF-18, to provide a notice to the insured person that identifies what the insurer agrees to pay for, as well as the medical reasons and all of the other reasons for anything the insurer does not agree to be reasonable and necessary. This is to be read in conjunction with section 38(11) of the Schedule, which provides that a failure to comply with section 38(8) prohibits the insurer from applying the MIG to the applicant's claim and compels the insurer to pay for all items proposed in the OCF-18. The payment period starts on the 11th business day after the day the insurer received the OCF-1 and ends on the day the insurer provides proper notice per section 38(8).
47The applicant raises section 38 of the Schedule in the context of the disputed OCF-18. He argues at paragraph 31 of his submissions that the respondent failed to provide a valid reason for denying the disputed OCF-18 in its notice dated April 29, 2022, and thereby falls short of the notice requirement at section 38(8) of the Schedule. The thrust of the applicant's position, found at paragraph 30 of his submissions, is that the respondent's denial rationale is erroneously based on his health practitioner failing to provide evidence of a pre-existing medical condition when, in fact, Dr. Samar Arabnezhad (chiropractor) indicated at Part 4 of the disputed OCF-18 that the applicant's impairment is not predominantly a minor injury.
48The applicant also argues that the notice dated May 3, 2022, for an IE physiatry paper review of the disputed OCF-18 failed to provide any basis for its determination that the applicant's injuries meet the definition of minor injury. The applicant explains that this reason directly contradicts the endorsement of Dr Arabnezhad (i.e., that the applicant's impairment is not predominantly a minor injury) and therefore asserts that the respondent failed to provide the medical reasons and all of the other reasons why the disputed OCF-18 is not reasonable and necessary.
49The respondent argues that the applicant's submissions on the April 2022 notice appear to have been improperly "conflated" (i.e., combined two ideas into one) the treatment providers' obligations as set out in section 38(3) of the Schedule, and the insurer's obligations at sub-sections (8) and (9) of section 38 of the Schedule. The respondent asserts that the notice provisions were complied with in each of the letters contested by the applicant, and that it relied on multiple reasons for its decision to deny the OCF-18, not just the one contested by the applicant.
50I agree that the pre-existing condition rationale offered in the respondent's April 2022 notice is not a valid reason for denying the disputed OCF-18.
51The notice explains that: "Your health practitioner has not submitted compelling medical evidence, documented by a health professional that would prevent you from achieving maximal medical recovery if you are subject to the goods and services authorized under the Minor Injury Guideline." However, I find the OCF-18 does not indicate the applicant's impairment is predominantly a minor injury that cannot achieve maximal recovery under the MIG owing to a pre-existing medical condition. Rather, Dr. Arabnezhad indicates the applicant's impairment is not predominantly a minor injury. I am not pointed to evidence that shows Dr. Arabnezhad or any other health practitioner determined the applicant's accident-related impairments could not be treated under the MIG because of a pre-existing medical condition. In my view, the respondent cannot rely on this reason to deny the disputed OCF-18 because it cannot reasonably expect the applicant to produce evidence of a pre-existing medical condition if he is not contesting the MIG on this basis.
52I afforded little weight to the respondent's position on conflating the provisions set out in sub-sections (3), (8), and (9) of section 38 of the Schedule because the applicant does not raise sub-sections (8) and (9) in his analysis of section 38(3).
53All that said, I nevertheless disagree that the applicant has shown the respondent's notice is deficient. The respondent's submissions recite and point to two additional reasons for denying the disputed OCF-18 in April 2022. The first is a requirement for an IE to determine if the OCF-18 is reasonable and necessary as a result of the applicant's accident-related injuries. The second is a reiteration of the outstanding request for medical records made on November 9, 2021, as well as the outstanding request made on February 3, 2022, to return a completed consent form for the release of the accident benefits file pertaining to an earlier benefit claim in August 2019. While the respondent does not go further to submit why it considers these to be valid reasons, I find it does not need to because the applicant bears the onus of showing the notice to be deficient. The applicant does not address either of these reasons in its analysis of the OCF-18 and therefore provides me with no arguments to consider. It would be improper and procedurally unfair of me to undertake my own analysis of these reasons. In my view, establishing that just one of several reasons for denying a medical benefit is not valid does not show me the respondent's notice is deficient overall. He should also show that the two other reasons offered in the notice fall short of being "…clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue" (see paragraph 26 of M.B.). As such, the applicant has not met his burden here.
54Similarly, the applicant has made arguments on just one of several reasons offered by the respondent in its May 2022 IE notice. In fact, the medical reasons offered by the respondent for its IE notice mirror those given to deny the OCF-18 in its April 2022 notice. And while I once again agree that the respondent has improperly imposed a requirement for the applicant to substantiate, with evidence, a claim he never made (i.e., the pre-existing condition provision), I arrive at the same finding I made on the April 2022 notice—establishing that just one of several reasons for denying a medical benefit is not valid fails to persuade me that the respondent's notice fails to offer a principled rationale based fairly on his file.
55When I consider this evidence together on a balance of probabilities, I find the applicant has not demonstrated that the respondent's notices pertaining to the disputed OCF-18 are non-compliant with section 38(8) of the Schedule. I therefore disagree that section 38(11) of the Schedule applies.
Interest
56Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. In this case, the applicant is entitled to interest on the NEB payments, but not the disputed OCF-18.
Award
57The applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate." [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration)]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets this threshold.
58The applicant submits that the conduct of the respondent merits an award. The applicant relies on the principals of statutory interpretation in Tomec to show the respondent was not entitled to ignore the clear and unambiguous wording in OCF forms that, when endorsed by health practitioners, triggers insurer obligations under the Schedule. The applicant also maintains the respondent required the applicant to attend "inherently intrusive" IEs that served as "fishing expeditions" and were not shown to be reasonable and necessary. The applicant requests an award of 50 per cent of the value of the denied plans.
59The respondent argues that the applicant is not entitled to an award and asserts there is no evidence there was any unreasonable delay or withholding of benefits. The respondent adds that if there has been any delay, it is a result of the applicant's non-compliance with section 33(1) information requests.
60I decline to order an award. The award claim is made on the NEB because the applicant did not establish entitlement to the OCF-18 and did not point to any other benefits on this claim. While I agree the reason offered in the respondent's NEB IE notice did not meet the Aviva standard, in that it was non-specific and unsupported, I disagree this conduct rises to being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. I find Tomec offers little assistance because its key principle pertains to the statutory intent of consumer protection legislation, which, in my view, does not extend to establishing that a health practitioner's endorsement of a MIG status, an impairment, or a disability must be accepted by the respondent at face value and without corroborating medical evidence from the applicant. It bears mention here too that the applicant is not faultless either, as his submissions did not address the respondent's claims that he failed to meet his duty to respond, or respond appropriately, to repeated section 33(1) requests made in support of the applicant's NEB claim. I weighed this conduct against the merit of the applicant's award claim because it more likely than not contributed to delays in adjusting the applicant's NEB claim.
ORDER
61The applicant remains in the MIG and is not entitled to the disputed OCF-18 or interest on this medical benefit. The NEB is payable in accordance with section 12(3) of the Schedule, starting on January 27, 2022. The respondent is not liable to pay an award.
Released: December 30, 2024
Michael Beauchesne
Adjudicator