Mohamed v. BelairDirect Insurance Company, 2024 CanLII 23457

Citation: Mohamed v. BelairDirect Insurance Company, 2024 ONLAT 21-010443/AABS

Licence Appeal Tribunal File Number: 21-010443/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:

Hussein Mohamed

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Riley W. McIntyre, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Hussein Mohamed (“the applicant”) was involved in an automobile accident on November 19, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2BelairDirect Insurance Company (“the respondent”) characterized the applicant’s injuries as predominantly minor and subjected him to the Minor Injury Guideline (“MIG”), the $3,500.00 funding limit for minor injuries and denied entitlement to certain treatment and assessment plans and other expenses. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

3At the case conference, the respondent raised preliminary issues/defences with respect to non-compliance with s. 33 (for failure to produce requested documentation) and s. 44 for non-attendance at insurer examinations.

4According to the Case Conference Report and Order, the parties agreed to work together to try to resolve the s. 33 and s. 44 disputes, and the respondent was advised to file a Notice of Motion to assert those defences if the dispute was unresolved. The respondent filed its Notice of Motion on July 14, 2023 and reiterates its request to raise those defences as the requested documentation remained outstanding and the applicant had not attended any insurer examinations.

PRELIMINARY ISSUES

5The respondent takes the position that the applicant is barred from proceeding with his application pursuant to s. 55 of the Schedule for failure to attend insurer’s examinations in accordance with s. 44.

6In the alternative, the respondent submits that the applicant is not entitled to the disputed medical benefits because he failed to comply with s. 33 requests for medical documents and information.

ISSUES

7The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
2. Is the applicant entitled to a medical benefit in the amount of $1,212.11 for chiropractic services proposed by East Sheppard Rehabilitation Clinic in a treatment plan dated June 23, 2020?
3. Is the applicant entitled to a medical benefit in the amount of $2,894.33 for chiropractic services proposed by East Sheppard Rehabilitation Clinic in a treatment plan dated September 2, 2020?
4. Is the applicant entitled to a medical benefit in the amount of $2,111.41 for chiropractic services proposed by East Sheppard Rehabilitation Clinic in a treatment plan dated November 3, 2020?
5. Is the applicant entitled to a medical benefit in the amount of $1,603.57 for chiropractic services proposed by East Sheppard Rehabilitation Clinic in a treatment plan dated January 27, 2021?
6. Is the applicant entitled to a medical benefit in the amount of $1,212.11 for chiropractic services proposed by East Sheppard Rehabilitation Clinic in a treatment plan dated May 4, 2021?
7. Is the applicant entitled to $87.19 ($200.00 less $112.81 paid) for an OCF-3 submitted on July 8, 2020?
8. Is the applicant entitled to $137.00 ($167.00 less $30.00 paid) submitted on July 8, 2020?
9. Is the applicant entitled to interest on any overdue payment of benefits?

8In his submissions, the applicant withdrew claims for a neurological assessment, psychological assessment, TMJ assessment, chronic pain assessment, and an orthopaedic assessment.

RESULT

9The applicant is non-compliant with s. 33 and the respondent is not liable to pay the disputed benefits.

10The applicant is subject to treatment within the MIG. He has not met his burden to prove his entitlement to the medical benefits and expenses in dispute.

11The application is dismissed.

ANALYSIS

The applicant is non-compliant with s. 33

12Section 33 of the Schedule states than an insured person shall, within 10 business days, provide the insurer with any information reasonably required to assist the insurer in determining entitlement to a benefit.

13The respondent’s position is that the applicant has failed to comply with its s. 33 requests, therefore pursuant to s. 33(6) it is not liable to pay a benefit in respect of any period which the insured fails to comply. I agree with the respondent.

14By letter dated June 18, 2020 the respondent requested (1) all clinical notes and records from the family physician from one year prior to the accident to present; (2) all clinical notes and records of any other prior family physicians and/or specialists from one year prior to the accident to present; (3) all hospital records (if applicable) from the date of the accident to present; (4) all clinical notes from the treating clinic from the date of the accident to present; and (5) any other compelling medical evidence to support his claim for injuries beyond the MIG. The respondent advised that it required documentation by July 3, 2020 in order to assist in determining his entitlement to medical and rehabilitation benefits beyond the MIG, and that a failure to provide the information may result in the suspension of the medical and rehabilitation benefits.

15The respondent reiterated its requests for this documentation by letters dated June 24, 2020 and July 2, 2020 and extended the deadline for its submission. The respondent reiterated the same requests in letters dated July 22, 2020, August 6, 2020, , September 22, 2020, and September 24, 2020, and included a request for a copy of the police report.

16By letter dated November 4, 2020, the respondent advised that it had requested the documentation on seven occasions and the last deadline was October 7, 2020. Given that it had not received any of the information to date, his entitlement to medical and rehabilitation benefits was suspended effective October 8, 2020.

17The applicant submits that he had a different legal representative at the time, and that the current representative requested a copy of the file but did not receive it in a timely manner, which contributed to the delay in complying with the requests. The applicant further submits that the respondent’s failure to provide a timely copy of the accident benefits file to his second representative invokes the provisions of s. 38(11) of the Schedule, and as a result he is entitled to the treatment plans in dispute.

18I find the applicant’s arguments irrelevant for the purposes of s. 33. Section 38 sets out the notice requirements for the denial letters. The applicant is not disputing whether they were sent to the applicant within the timelines set out in the Schedule, or the sufficiency of the denial, but rather that the second legal representative was not provided a copy of the letter in a timely manner. That is not a requirement under the Schedule. The applicant had representation at the time all of the requests were made and when the benefits were suspended, and he is not disputing that the letters were sent to both the applicant and his representative at the time.

19By letter dated August 15, 2022, the applicant provided pre-screen reports from the facility where the applicant sought treatment, clinical notes and records from the walk-in clinic attended by the applicant, and an OHIP summary. The applicant is still non-compliant with the remaining s. 33 requests, as he has not provided any pre-or post-accident records from a family doctor, no hospital records, no clinical notes or treatment records from the treating clinic (other than the pre-screening reports) nor has he advised what efforts were made to obtain any of those records, or if they exist. The OHIP summary spans 30 pages, suggesting that there are records available that have not been produced.

20Partial compliance with a request under s. 33 is not sufficient. Without full compliance, the insurer can rely on s. 33(6). See, for example: Mahhamoud v Aviva General Insurance, 2022 CanLII 65564 (ON LAT).

21I agree with the respondent that the requested records are relevant and necessary to assist both the insurer and the Tribunal in determining whether the applicant sustained a minor injury as defined by the Schedule and his entitlement to the medical benefits in dispute. As a result, I find that given the applicant’s non-compliance, pursuant to s. 33(6) the respondent is not liable to pay the benefits.

The Minor Injury Guideline, Medical Benefits, and Expenses

22The applicant bears the burden of proof to establish that his injuries are not minor as defined by the Schedule, and that the requested treatment is reasonable and necessary or that the insurer’s denial was late or improper.

23The applicant failed to adduce any evidence or make any submissions that his injuries fall outside of the MIG. The applicant made no submissions regarding the reasonableness and necessity of the treatment plans. The applicant made no submissions on whether the insurer’s denial was late or insufficient. The applicant has not even provided copies of all of the disputed plans or the expenses claimed. The applicant argues that invoices for the completion of an OCF-3 in March 2020 and for the provision of medical records in July 2020 were improperly partially denied. However, the applicant has not even included these invoices in his submissions.

24I find that he has not met his burden to prove that he sustained an injury that requires treatment beyond the MIG. The applicant has not met his burden to establish entitlement to any of the disputed medical benefits or expenses claimed.

Section 55

25Pursuant to s. 55(1)2 of the Schedule, an applicant shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. The requirements for a Notice of Examination are set out in section 44(5) of the Schedule.

26Given my findings above on the applicant’s substantive entitlement to the benefits, it is not necessary for me to consider the s. 55 argument. However, I considered the parties’ submissions and I would have found that the applicant is barred from proceeding with his application pursuant to s. 55(1)2 in any event.

27The applicant made no submissions on whether the notices of examination met the requirements of s. 44(5), nor is there any dispute that the applicant did not attend the examinations.

28Upon receipt of a treatment plan dated March 24, 2020 (that is not in dispute), the respondent advised the applicant by letter dated March 26, 2020 that he was required to attend an insurer examination with a general practitioner, Dr. Mark Goldstein, to determine his entitlement to the treatment plan and determine if his injuries fall outside of the MIG.

29On April 1, 2020, the respondent also advised the applicant that he was also required to attend an insurer examination with a psychologist, Dr. Arpita Biswas, to determine his entitlement to a psychology assessment plan also dated March 24, 2020 (also not in dispute), and to determine if his injuries fell outside of the MIG.

30The applicant failed to attend the examinations. On May 7, 2020 the respondent advised that it had rescheduled the psychology examination and included a new notice. On May 20, 2020 the respondent advised that it had rescheduled the examination with Dr. Goldstein and included a new notice. The applicant failed to attend these examinations.

31The respondent rescheduled the assessments a third time, and provided new notices, but again the applicant did not attend. On October 8, 2020 the respondent wrote to the applicant regarding his failure to attend, that it maintained its denial with respect to the two treatment plans, and advised the applicant to contact the adjuster should he wish to reschedule.

32The applicant retained counsel shortly after the accident, who later withdrew their representation. By letter dated February 3, 2021 the applicant’s current representative wrote to the respondent and requested a complete copy of the accident benefits file. The applicant submits that the representative did not receive a copy of the accident benefits file until July 20, 2022.

33The applicant submits that in the absence of a copy of the complete accident benefits file for a significant period of time meant that the applicant was unable to receive guidance from his new representative regarding his obligation to comply with the insurer’s requests. However, there is no dispute that the applicant had representation at the time, that he received the notices, and failed to attend the examinations. Whether his new representative had a copy of the file has no bearing on the applicability of s. 55.

34The applicant further submits that the respondent is precluded from raising s. 55 because at no time after the case conference on June 3, 2022 did the respondent attempt to reschedule any of the s. 44 examinations. However, there is no evidence that the applicant contacted the respondent to reschedule the examinations after the case conference.

35Accordingly, although it is not necessary for me to consider the s. 55 argument, I would have found that the applicant is barred from proceeding with his application pursuant to s. 55(1)2.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are owed, therefore no interest is payable.

ORDER

37The applicant is non-compliant with s. 33 and the respondent is not liable to pay the disputed benefits pursuant to s. 33(6).

38The applicant sustained a minor injury and is subject to treatment within the MIG. He is not entitled to the medical benefits and expenses in dispute, nor interest.

39The application is dismissed.