Citation: Aziz v. Pembridge Insurance Company, 2024 ONLAT 21-005362/AABS

Licence Appeal Tribunal File Number: 21-005362/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:

Nabil Aziz

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Elvis Viskovic, Paralegal

For the Respondent:

Shelby Chung, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Nabil Aziz (the “applicant”) was involved in an automobile accident on December 4, 2019, 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 Pembridge Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

Is the applicant barred from proceeding with his income replacement benefit application because he did not comply with certain requirements in the Schedule?

2This preliminary issue concerns a dispute over whether the applicant is entitled to an income replacement benefit in the amount of $371.06 per week from December 11, 2019, to December 9, 2021.

Applicability of section 35(1) to the income replacement benefit

3I find the respondent has not shown that section 35(1) applies to the applicant’s claim for an income replacement benefit.

4The respondent submits the applicant is barred from proceeding with his claim for income replacement benefits because he failed to submit an OCF-10 (i.e., an election of income replacement, non-earner, or caregiver benefit) in accordance with section 35(1) of the Schedule.

5The applicant argues that his intention to claim an income replacement benefit was clear because his eligibility for a non-earner benefit is precluded by section 12 of the Schedule. The applicant adds that the respondent commissioned an accounting report that substantiates a benefit is, in fact, payable up to October 15, 2020.

6Section 35(1) of the Schedule says, that if an application indicates the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive.

7Therefore, the respondent must show the application qualifies the applicant for two or more of these Part II benefits, that it provided a compliant notice of election to the applicant within 10 days of receiving the application, and that the applicant failed to make an election within 30 days of receiving the notice.

8I agree with the applicant’s position. Section 12(1)1 of the Schedule precludes an insurer from paying a non-earner benefit to an insured person who qualifies for an income replacement benefit. And I find the application demonstrates that the applicant qualifies for an income replacement benefit. The OCF-1 (i.e., application for accident benefits) dated January 2, 2020, indicates the applicant was self-employed at the time of the accident, that his injuries prevented him from working, and that he had been unable to return to work at any period since the accident. Part 6 of the OCF-3 (i.e., disability certificate) completed by Justin Pascual (chiropractor) on February 25, 2020, indicates the applicant is substantially unable to perform the essential tasks of his employment. In my view, this evidence is consistent with the eligibility criteria for an income replacement benefit as set out in section 5(1)(1) of the Schedule.

9I therefore disagree that the mandatory requirements set out in section 35(1) were engaged. I am not satisfied that the respondent has met its burden to show the applicant may qualify for both an income replacement benefit and a non-earner benefit because there is no ambiguity as to the applicant’s entitlement to an income replacement benefit. I find an election by the applicant was not needed for the respondent to begin adjusting the claim, and this is underscored by the explanation of benefits letter, dated March 10, 2020, which indicates the respondent had referred the applicant’s income replacement benefit information to an independent accountant to determine the amount of benefit payable, and that, upon receipt of the accountant’s report, the respondent will issue any benefit payable.

Applicability of section 33(1) to the income replacement benefit

10I find the respondent has shown the applicant failed to comply with section 33(1)of the Schedule as it pertains to his claim for an income replacement benefit.

11The respondent submits the applicant failed to provide information it requested per section 33(1) of the Schedule to support quantum calculations for the income replacement benefit.

12The applicant submits the respondent had made document requests without providing a report to justify how the additional information would impact the quantum, or why a particular document is necessary to complete the report. The applicant says the accounting report (dated June 17, 2021) relied upon by the respondent was never served on the applicant and the payment indicated in the report was never made to the applicant.

13Section 33(1) of the Schedule says an applicant shall, within 10 business days after receiving a request from an insurer, provide any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. The implications of failing to do so are made out in section 33(6) of the Schedule, which provides that the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with section 33(1).

14I accept that the respondent made a section 33 request for information to determine entitlement to an income replacement benefit, and specifically the benefit quantum. The respondent points to an explanation of benefits, dated June 24, 2020, which requests the applicant provide specific information that was earlier solicited by BDO Canada on March 20, 2020, and April 20, 2020. The BDO letter outlines 11 separate requests for information pertaining to the applicant’s self-employment and income that I find, on balance, to be reasonably required to complete a quantum calculation of the benefit. I did not place weight on the respondent’s subsequent notice to the applicant about this request (dated October 15, 2020) because I am not satisfied the request was clearly articulated.

15I was not pointed to evidence that convinces me the applicant responded to these requests for information. Rather, the evidence shows the applicant instead provided an accounting report prepared on his behalf by ADS Forensics on March 25, 2021. The applicant’s submissions do not direct me to evidence that confirms all the requested information was included in this report, or that the information included in this report was deemed sufficient by the assessors to reliably calculate the benefit quantum.

16I accept that some of the information requested by the respondent to calculate the income replacement benefit quantum remained outstanding at the time of the ADS Forensics report. The respondent wrote to ADS Forensics on April 22, 2021, to advise six of 11 documents requested to perform the benefit calculation were not included in its report. The respondent then wrote to the applicant on May 5, 2021, to reiterate these six requests for information remained outstanding and still applied, and to invite a reasonable explanation for not providing the information. The implication of the missing information on the accuracy of the calculation is made out in the Davis Martindale accounting report of June 17, 2021, which says the benefit payable could be $nil depending on the outstanding filing status of an income tax return. I find this implication establishes that at least some of the outstanding information is, in fact, reasonably required to assist with the quantum calculation.

17I do not accept that the applicant’s explanation for not providing this information is reasonable. If the applicant was concerned about why the requested information was needed and how it would be used, the applicant ought to have communicated this to the respondent well before he filed his written reply submissions with the Tribunal (i.e., within 10 days of receiving the June 2020 request from the respondent per section 33). The applicant did not point me to evidence that shows he did this.

18When I take this evidence together on balance, I find the respondent has shown the applicant failed to provide information that was reasonably required to assist in determining benefit entitlement (i.e., the benefit quantum). Further, I am not convinced that the applicant has a reasonable explanation for failing to provide this information. Therefore, I find section 33(6) applies, which means the respondent is not liable to pay the benefit during the period of non-compliance.

19The applicant’s submissions note he is only pursuing the income replacement benefit for the first 104 weeks after the accident, which I find is per section 5(1)2 of the Schedule. The parties agree the benefit period ends on December 9, 2021. I was not pointed to evidence that persuades me the applicant had remedied the respondent’s outstanding information requests prior to this date. Therefore, I find the respondent is not liable to pay an income replacement benefit under section 5(1)2.

Is the applicant barred from proceeding with a treatment plan (the “OCF-18”) for a psychological assessment because he did not comply with section 44 of the Schedule?

20This preliminary issue concerns a dispute over whether the applicant is entitled to a psychological assessment in the amount of $2,486.00, proposed by Advanced Healthcare Management in an OCF-18 dated March 3, 2020, and denied on March 17, 2020.

21I find the respondent’s Notices of Examination (the “Notices”) did not comply with section 44 of the Schedule. The respondent is therefore not entitled to rely on section 55(1)2 of the Schedule.

22The respondent submits that the applicant did not comply with his requirement to attend an Insurer’s Examination (the “IE) under section 44 of the Schedule, and failed to provide a reasonable explanation for doing so.

23The applicant argues that he had health issues and psychological symptoms that were known to the respondent and caused him to fear going out during the pandemic period. He acknowledges he did not attend the IEs, but maintains the respondent refused to reschedule them to accommodate his anxiety.

Notice requirements to be observed by the respondent

24The requirements for a Notice are set out in section 44(5) of the Schedule, and say the respondent shall indicate :

i. the medical and any other reasons for the examination;

ii. whether the attendance of the insured person is required at the examination;

iii. 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

iv. if the attendance of the applicant 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.

25Section 55(1)2 of the Schedule provides that the applicant shall not apply to the Tribunal if the respondent has provided the applicant with a Notice that it requires an examination under section 44, but the applicant has not complied.

26Given the above provisions, the Schedule is clear that the applicant has a duty to participate in each IE 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.

The respondent’s Notices were not compliant

27The respondent must prove that its Notice complies with section 44(5) of the Schedule for an applicant to be statute-barred from proceeding under section 55. The respondent must ensure that it provides specific reasons for the examination. The respondent must also provide attendance requirements and assessor details. As well, the Notice must specify the benefit in dispute and any section it relies upon.

28Moreover, it is trite law that boilerplate medical reasons for denials of OCF-18s submitted under the Schedule constitute 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. The principle of meaningful reasons is articulated in Smith v. Co-operators General Insurance Co, 2002 SCC 30 (“Smith”), which provides that the refusal to pay the benefit must contain straightforward and clear language directed towards an unsophisticated person. Accordingly, Smith requires a Notice to be as specific and accessible as possible to ensure that there is no ambiguity in what the Notice means when read by an unsophisticated person.

29In my view, this means the Notice should, at the very least, explain what the insured person’s medical conditions are, and why, for example, those conditions do not justify removal from the MIG. 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 applicant will have a better understanding of the insurer’s determination. It is then that the consumer protection mandate of the Schedule is achieved.

30Therefore, 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), it cannot rely on the severe remedy available in section 55 of the Schedule to bar the application from proceeding before the Tribunal.

31The respondent submits it provided proper Notice, and explains it clearly outlined the medical and other reasons for the examination, including its belief that the MIG applied. The Respondent also says it indicated the applicant’s attendance was required, and identified the assessors and location of the assessment.

32The applicant’s submissions do not address the adequacy of the respondent’s notice.

33I do not agree that the respondent’s reasons for the IE were clear in its Notices. The respondent’s submissions point to four Notices, dated March 27, 2020, May 12, 2020, September 29, 2020, and November 4, 2020. While each of these Notices identify that the respondent is refusing to pay for the psychological assessment OCF-18, I find the Notices do not provide corresponding reasons that speak to the applicant’s psychological condition or injuries. The reasons broadly refer to documentation and medical information without specifying which of these are relevant to the severity of the applicant’s psychological symptomology. In my view, this is essential information because the respondent vaguely reasons that the severity of the injuries reported is not consistent with the file information. The respondent’s rationale for the IE also refers to a telephone conversation on December 13, 2019, but does not share specific details of the call that support the respondent’s decision to require an IE. The respondent also says the OCF-18 is not reasonable and necessary for soft tissue injuries treatable under the MIG, which I find is not relevant to an IE Notice pertaining to a psychological assessment that, as its stated goal in part 9 of the OCF-18, aims to return the applicant to pre-accident psychological functioning.

34I would also point out here, that the Notices refer to treatment and assessment plans (plural) when only one OCF-18 is identified as being denied. As well, it refers to these plans being dated March 30, 2020, whereas the psychological assessment OCF-18 is dated March 3, 2020. While these discrepancies do not, in and of themselves, make the Notice non-compliant, I find they do add confusion and make the Notice less approachable and understandable.

35Taken together on balance, I find this evidence demonstrates the respondent’s reasons for the IE, as provided in its Notices, are neither specific, nor clear enough to be sufficiently understood by an unsophisticated person. Therefore, I am not satisfied that the respondent’s Notices comply with section 44(5)(a) of the Schedule. This means the applicant did not have a duty to attend the IE, and the respondent may not rely on section 55(1)2 to bar the application.

SUBSTANTIVE ISSUES

36The substantive issues in dispute are:

i. Is the applicant entitled to the medical benefits proposed by Advanced Healthcare Management as follows:

i. A psychological assessment in the amount of $2,486.00, in an OCF-18 dated March 3, 2020, and denied on March 17, 2020; and

ii. Psychological therapy in the amount of $3,641.09, in an OCF-18 dated April 9, 2020, and denied on June 9, 2020?

ii. Is the applicant entitled to an IRB calculation report in the amount of $2,825.00, completed by ADS Forensic Accounting on March 31, 2021, and denied on April 22, 2021?

iii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

37The OCF-18s in dispute are not reasonable and necessary, and no interest is payable. The applicant is entitled to the cost of the IRB calculation report up to $2,500.00, plus interest. The respondent is not liable to pay an award.

ANALYSIS

OCF-18s for psychological assessment and treatment

38I find the applicant has not demonstrated the OCF-18s in dispute are reasonable and necessary.

39Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule further explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

40The applicant’s submissions say he was diagnosed with an adjustment disorder that included mixed anxiety and depressed mood. The applicant says he was recommended for psychotherapy, and adds that the adjuster’s log notes acknowledge he was suffering from psychological symptoms. The applicant relies on a psychological assessment conducted by Dr. Erin Langlis (psychologist), as well as a June 2020 clinical note from Dr. Nashwah Taha that mentions ongoing anxiety.

41The respondent’s submissions argue that the records of Dr. Magdy Hanna (the applicant’s family physician) from 2020 to 2022 only reference anxiety in relation to COVID-19, obesity, and lower back pain. The respondent takes the position that it is not clear these complaints are accident related. The respondent submits it is prejudicial to put weight on the conclusions of Dr. Langlis without affording it an opportunity to have the applicant undergo an IE.

42I am not convinced the applicant has met his onus to show these OCF-18s are reasonable and necessary. While the applicant points to diagnoses offered by Dr. Langlis, I find there is little corroborating medical evidence of psychological symptomology contemporaneous to the accident to support the need for an assessment or therapy. The accident occurred on December 4, 2019. The assessment was completed on April 9, 2020. The applicant’s submissions did not point to medical evidence of psychological concerns during this four-month period.

43I agree with the respondent’s position that Dr. Hanna’s records do not speak to psychological concerns related to the accident. Looking specifically at the period leading up to Dr. Langlis’ assessment, I find there are several documented consultations with Dr. Hanna and they do not express concerns about psychological symptomology owing to the accident, nor do they include referrals for a psychological assessment or therapy. In fact, the applicant told Dr. Langlis that he visited Dr. Hanna three days after the accident and voiced complaints of physical pain in his back, neck, and right leg—there is no mention of psychological symptomology.

44I place little weight on Dr. Taha’s mention of the applicant’s anxiety because I find it relates to the pandemic and is not accident-related symptomology. While the applicant’s submissions reference “numerous further entries” that mention the applicant’s ongoing anxiety, his submissions do not pinpoint these in evidence so they weigh little on my decision. Similarly, I gave the adjuster log notes little weight because the applicant did not pinpoint where in those notes the applicant’s psychological symptoms were reported.

45The goal in part 9 of the OCF-18 for the psychological assessment is the same goal listed in part 9 of the OCF-18 for psychotherapy: to return the applicant to his pre-accident level of psychological functioning. I do not accept this is a reasonable goal for either OCF-18 because there is insufficient evidence of psychological symptomology owing to the accident that merits assessment or treatment for this purpose. I therefore find these OCF-18s are not reasonable and necessary.

IRB calculation report in the amount of $2,825.00

46I find the applicant is entitled to payment for the IRB calculation report prepared by ADS Forensics Inc., on March 25, 2021.

47Section 7(4) of the Schedule says the respondent shall pay an expense incurred by, or on behalf of the applicant, to prepare a report for the purpose of calculating the applicant’s income from employment or self-employment if all the following conditions are satisfied:

i. The applicant is applying for an income replacement benefit that is based on the employment or self-employment considered in the report.

ii. The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004.

iii. The expense is reasonable and necessary for the purpose of determining the applicant’s entitlement to an income replacement benefit.

48This is to be read in concert with Section 7(5) of the Schedule, which allows up to $2,500.00 in total for the report expenses.

49The applicant submits he was found to be substantially unable to perform the essential tasks of his pre-accident self-employment per the OCF-3, and that he meets all the conditions that pertain to an IRB calculation report expense as set out in the Schedule. The applicant adds that the respondent has never required an IE to determine his eligibility to the benefit.

50The respondent argues that the applicant has never properly applied for an IRB per section 7(4)1 of the Schedule and therefore should not be entitled to the cost of an IRB calculation report.

51In my view, the applicant meets all the conditions set out in sections 7(4) and (5) of the Schedule.

52For the first condition, I find the evidence confirms the applicant applied for an IRB. The OCF-3 submitted to the respondent determined the applicant met the test for an IRB, and the respondent’s Explanation of Benefits (dated March 10, 2020) confirms receipt of the OCF-3 and says the applicant may be entitled to an IRB. I earlier addressed the issue of the outstanding OCF-10 raised by the respondent and find it was not required to complete the application in this case because there was no ambiguity as to the applicant’s IRB eligibility. Further, the work considered in the accounting report submitted by the applicant is his self-employment as a gas station owner and operator, which the applicant was performing at the time of the accident. This is also consistent with Part 1 of the OCF-3. As such, I am satisfied the first condition is met.

53For the second condition, I note the IRB calculation report completed by ADS Forensics Inc., indicates the preparers—Lisa de Jong and Michael Sigsworth—have both obtained their professional accountants’ credentials (CPA and CGA), which qualifies them as members of a designated body within the meaning of the Public Accounting Act, 2004. Therefore, I am satisfied the second condition is met.

54The third condition requires me to consider the reasonableness and necessity of the expense report, and I find this condition is met. In my view, the quantum of the IRB benefit forms part of the dispute. This is indicated on the application to the Tribunal, dated April 30, 2021. As well, the quantum proposed in the respondent’s IRB calculation report does not agree with the result obtained by ADS Forensics Inc. Given that neither party could anticipate the outcome of the appeal, I am satisfied it was reasonable for the applicant to exercise prudence and calculate the value of the benefit in anticipation of the hearing. Further, when I consider the volume and types of documents relied upon to do the calculation in a self-employment context, I accept the calculation was not straightforward and that the necessity of the accounting report is established by the need for professional assistance (i.e., an accountant).

55As such, I find the applicant is entitled to be paid up to a total of $2,500.00 (inclusive of taxes) for the accounting report prepared by ADS Forensics Inc., plus any interest that may be owing.

Interest

56Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no benefits owing, so no interest is payable.

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. Since there are no benefits owing, the respondent is not liable to pay an award.

ORDER

58The OCF-18s in dispute are not reasonable and necessary and no interest is payable. The applicant is entitled to the cost of the IRB calculation report up to $2,500.00, plus interest. The respondent is not liable to pay an award.