Licence Appeal Tribunal File Number: 23-008259/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:
Laura Lulic
Applicant
and
Primmum Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Lisa Bishop, Counsel
For the Respondent:
Ken Yip, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Laura Lulic (“the applicant”), was involved in an automobile accident on June 13, 2020 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 Primmum Insurance Company (“the respondent”) 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:
i. Is the applicant barred from proceeding with her claim for all of the accident benefits claimed in the application as she failed to submit to an insurer’s examination under section 44 of the Schedule?
RESULT
3The applicant is not barred from proceeding with her application.
ANALYSIS
Parties’ Positions
4The respondent submits that the applicant failed to attend insurer’s examinations (IEs) to assess her entitlement to income replacement benefits (“IRBs”). Several examinations were rescheduled multiple times, and the applicant did not attend. The respondent submits that it provided sufficient notice and reasons for the section 44 IEs, and that it required the examinations to determine the applicant’s entitlement to the benefits in dispute.
5The applicant submits that the notices were deficient and did not provide sufficient medical or other reasons.
The Law
6Section 44(1) of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE.
7The requirements for a Notice of Examination (“NOE”) 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.
8Section 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.
9These provisions of the Schedule make it 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.
The notices of examination were non-compliant with s. 44(5)(a)
10The respondent must prove that a notice of examination is compliant with section 44(5) of the Schedule in order to rely on it as a basis to seek a statutory bar 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. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). The reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.
11Multiple notices were sent by the respondent. The respondent submits that they should all be read holistically, and that taken together, sufficient notice was provided. I find that, even if read holistically, at no point did the respondent provide sufficient notice. The defective notices were never cured.
12Upon receipt of documentation confirming that the applicant was unable to work, by letter dated November 10, 2020, the respondent advised the applicant that it required a completed disability certificate. It also advised that she was required to attend IEs. No medical or other reasons were included in the letter. I find that this notice was deficient.
13By letter dated December 21, 2020, the respondent advised that she was eligible for IRBs, but that she was required to attend IEs. No medical or other reasons were provided. The respondent subsequently sent a letter including details of the assessments (a functional capacity evaluation (“FCE”), a psychiatry assessment, and a physiatry assessment). Again, no medical or other reasons were provided.
14Counsel for the applicant wrote to the respondent and advised that there were no reasons provided for the requested assessments.
15The respondent cancelled the assessments until further notice, noting that the disability certificate it had received was unsigned and therefore invalid. Upon receipt of a valid disability certificate, the respondent sent a letter to the applicant dated March 23, 2021, again requesting her attendance at IEs. The reason provided was “your motor vehicle accident is 9 months old, and your injuries have not resolved, we require a medical opinion to confirm that you are unable to return to your employment due to your injuries sustained from the motor vehicle accident”. It 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. I find this notice is deficient because the respondent did not provide any details of the applicant’s condition(s) that formed the basis of the insurer’s decision, or what information it did not have but required.
16Counsel for the applicant again wrote to the insurer and advised that it failed to provide sufficient detail and had not provided meaningful reasons why the assessments were required.
17By letter dated April 13, 2021, the respondent advised the applicant of the details to support its request to conduct the IEs (FCE, psychiatry, and orthopedic assessment) and reiterated similar reasons as provided in the March 23, 2021 letter, but still did not provide any details of the applicant’s condition(s). I find this notice was also deficient.
18The applicant did not attend the orthopedic assessment. By letter dated April 26, 2021, the respondent advised that it was rescheduled. Similarly, by letter of May 18, 2022, the respondent advised that the FCE and psychiatry assessments were rescheduled following her non-attendance. No further medical or other reasons were provided in these letters. The deficient notices were not cured.
19Counsel for the applicant again advised that they believed that the notices were deficient, and that the respondent had not provided medical reasons for the assessments. In response, by letter dated June 1, 2021, the respondent noted the rationale it had provided in its prior deficient letters. Nothing in this letter cured the defective notices as it was simply a restatement of the previous reasons, which I find insufficient. The respondent subsequently advised that her IRBs were suspended effective July 16, 2021 for failure to attend the IEs.
20In the fall of 2021 the respondent rescheduled the IEs (FCE, orthopedic, and psychiatry assessments), but no medical or other reasons were provided. By letter dated November 25, 2021, the respondent advised that the applicant was no longer eligible for IRBs because she had returned to her pre-accident employment, and the benefit was stopped effective November 14, 2021. The applicant underwent an orthopedic assessment, with respect to the applicability of the Minor Injury Guideline (“MIG”) and treatment plans, but not with respect to IRBs. During this assessment it was revealed that she had only returned to work for a short time in November 2021 before stopping again.
21Upon receipt of that information, the respondent wrote to the applicant and requested an updated disability certificate and requested that she undergo further imaging as recommended by the orthopedic assessor. By letter dated June 3, 2022, the respondent advised that IRBs were suspended effective May 21, 2022 until it received the missing documentation. The letter also indicates that she would be required to attend IEs but, again, no reasons are provided.
22The respondent scheduled assessments to evaluate her entitlement to post-104 IRBs (FCE, vocational, and psychological assessments). No medical or other reasons are provided. The applicant did not attend the assessments, and they were rescheduled. The respondent also scheduled an MRI and ultrasound and provided details of the investigations, but provided no medical or other reasons. The respondent subsequently advised that the notice of examination for the FCE assessment was sent in error, and that IEs were cancelled until it received the results of the MRI and ultrasound. A letter dated November 22, 2022, indicates that the ultrasound and an x-ray were scheduled. No medical or other reasons are provided. By letter dated January 17, 2023 the respondent advised that due to her non-attendance at the ultrasound and x-ray, IRBs were not payable.
23Despite sending over a dozen notice letters to the applicant, I find none of the notices met the requirements of section 44 because they, individually and collectively, fail to provide adequate reasons to support the need for the IEs or to assist the applicant in determining whether she should attend. Given that the notices did not comply with section 44(5), the respondent cannot rely on the remedy available in section 55 of the Schedule to bar the applicant’s application from proceeding before the Tribunal.
24Having found the notices deficient, it is not necessary for me to consider whether the IE was reasonably necessary or whether the applicant had a reasonable explanation for her non-attendance.
25For the reasons above, I find that the applicant is not precluded from applying to the Tribunal.
COSTS
26The respondent has requested costs of this preliminary issue hearing in the amount of $2,000.00. The respondent submits that the applicant did not make herself available for IEs without valid reasons, and continues to dispute her claim despite her non-attendance. The respondent submits that it was prejudiced by incurring costs in defending frivolous applications.
27Given my findings above, the applicant was within her rights to refuse to attend the IEs given the deficient notices. I see no basis upon which to award costs in the circumstances. The request for costs is dismissed.
ORDER
28The applicant may proceed with her application to the Tribunal.
29The respondent’s request for costs is dismissed.
Released: June 12, 2024
Kate Grieves
Adjudicator