Licence Appeal Tribunal

Citation: Roper v. Pembridge Insurance Company 2024 ONLAT 23-004633/AABS-PI

Licence Appeal Tribunal File Number: 23-004633/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:

Ryan Roper

Applicant

and

Pembridge Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Tina Lubman, Paralegal

For the Respondent:

Diana Oliveira, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ryan Roper, the applicant, was involved in an automobile accident on May 31, 2021 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent, Pembridge Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issues to be decided are:

i. Is the applicant barred from proceeding to a hearing for the non-earner benefit (“NEB”) because the applicant failed to provide the proper election (“OCF-10”) according to s. 35 of the Schedule?

ii. Is the applicant barred from proceeding to a hearing for all the benefits claimed in his application because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

result

3The applicant is barred from proceeding with his claim for NEBs, as a result of his failure to submit an OCF-10;

4The applicant may proceed to the substantive hearing on the remaining issues in dispute.

ANALYSIS

Failure to provide OCF-10 election

5I find that the applicant was required to submit an OCF-10. As he has not done so, the applicant is barred from proceeding with his claim for NEBs.

6Section 35(1) of the Schedule provides that:

If an application indicates that 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.

7The applicant filed an Application for Accident Benefits (“OCF-1”) on August 4, 2021, which indicated that the applicant had returned to work. The OCF-1 also indicated that the applicant was unable to return to his normal activities following the accident. The applicant had previously filed a Disability Certificate (“OCF-3”) on June 10, 2021, which indicated that the applicant had suffered a complete inability to carry on a normal life. The OCF-3 also stated that the applicant was substantially unable to perform the essential tasks of his employment, that he had returned to work on modified duties, but that he had not worked at least 26 of the previous 52 weeks preceding the accident.

8The respondent submits that the information provided in the OCF-1 and OCF-3 indicated that the applicant may be eligible for more than one specified benefit. As such, in an Explanation of Benefits (“EOB”) dated August 23, 2021, the respondent requested that the applicant complete an OCF-10 Election of Benefit form, to choose which specified benefit the applicant was pursuing. The respondent also sent a s. 33 request to the applicant requesting various documentation, including the OCF-10.

9There is no dispute that the applicant has not submitted an OCF-10 to date.

10The applicant submits that he provided the respondent with “sufficient particulars” to confirm that the only benefit to which he was entitled, was NEBs. He argues that his OCF-1 and OCF-3 indicated that he had returned to work, and that as such, an OCF-10 was not required.

11The respondent argues that the information contained in the OCF-1 and OCF-3 supported the need for an OCF-10 election, and that the applicant did not confirm that he was pursuing NEBs. It submits an email from the applicant’s representative, stating that they were “in the process of having our client’s loss of income calculated” and that once they received the accounting report, they would be “in a position to send you the OCF-10”. However, no accounting report or OCF-10 was received by the respondent.

12I agree with the respondent that in the present matter, the OCF-1 and OCF-3 could support a claim to either an NEB or income replacement benefits. The OCF-1 indicated that the applicant had returned to work, and that his injuries prevented him from returning to his normal activities following the accident. The OCF-3 further stated that the applicant had both suffered a complete inability to carry on a normal life and was substantially unable to perform the essential tasks of his employment. Given this ambiguity, the respondent’s request to have the applicant complete an OCF-10 election, was warranted.

13I further agree with the reasoning in Alkhazov v Aviva Insurance Company of Canada, 2022 CanLII 84676 (ON LAT), cited by the respondent, that where an application indicates possible entitlement to more than one specified benefit, in addition to an OCF-1 and an OCF-3, an OCF-10 is required. Alkhazov further held that as the applicant failed to submit an OCF-10, they were barred from proceeding on two bases. Firstly, failure to submit an OCF-10 as required by s. 35(1) results in an incomplete application, and as such the respondent’s obligation to pay under section 12 was not engaged. Secondly, as the respondent had requested the OCF-10 pursuant to s. 33, the applicant’s failure to provide the requested documentation relieved the respondent from paying the specified benefit pursuant to s. 33(6).

14The applicant did not provide any submissions on the caselaw cited by the respondent or s. 35(1) or s. 33(6) of the Schedule. Nor did the applicant submit any caselaw in support of his claim that an OCF-10 election was not required.

15I am persuaded by the caselaw cited by the respondent, and find that the respondent’s request for an OCF-10 was warranted and that the applicant’s failure to submit an OCF-10, as required by s. 35(1) of the Schedule, resulted in an incomplete application. Further, the applicant’s failure to provide the requested documentation has relieved the respondent from its obligation to pay the NEBs, pursuant to s. 33(6). As such, the applicant is barred from pursuing his NEB claim.

Section 55(1)2 - Failure to attend scheduled insurer’s examination (“IE”)

16I find that the applicant is not barred from proceeding with the remaining issues in dispute, due to his failure to attend the scheduled IE.

17The respondent submits that the applicant has failed to attend a physiatry IE scheduled for December 23, 2023, which was set to determine his entitlement to the remaining issues– the Minor Injury Guideline and the treatment plan in dispute. The respondent argues that no IEs had been conducted to date, and as such it was reasonably necessary to assess the applicant’s entitlement. The respondent further submits that its Notice of Examination (“NOE”) was a valid notice, and as such, the applicant should be barred from proceeding with the remaining issues in dispute pursuant to s. 55(1)2 of the Schedule.

18The applicant submits that the proposed IE was not reasonably necessary, and that no effort had been made by the respondent to arrange an IE prior to November 30, 2023, 130 weeks after the accident. The applicant further submits that the respondent is precluded from relying on s. 55(1)2 as its NOE was deficient, in that it did not provide sufficient “medical and other reasons” for the examination.

19Section 44 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 evoke its rights to an IE.

20The requirements for a Notice of Examination 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.

21Pursuant 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.

22The 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. The respondent must first prove that a Notice of Examination complies with s. 44(5) of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55. When 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. The reasons must be clear enough so that the applicant can make a well-informed decision on whether to attend the examination.

23I find that the respondent’s letter and NOE dated November 30, 2023 did not comply with s. 44(5) of the Schedule. I agree with the applicant that the respondent failed to provide a “medical and any other” reason for the examination. The language contained in the NOE is vague and fails to provide any specific details about the applicant’s medical condition. It simply states that there is “no compelling medical evidence to support that you have sustained injuries which are not predominantly minor in nature” or that the applicant had a pre-existing medical condition.

24It 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. In the present case, the respondent did not provide any specific details about the applicant’s condition. The respondent argues that its previous EOB properly referred to a medical condition, in that it referenced “soft tissue injuries”. While I accept that this is a reference to a specific medical condition, this EOB was not provided with the request for an IE. Rather, it was sent on November 1, 2021, more than two years before the NOE was sent. As such, I do not agree with the respondent that its initial EOB denying the treatment plan, sent two years previously, must be read together with the present NOE.

25In addition, the respondent’s NOE failed to alternatively identify information that the respondent did not have, but required. The respondent argues that its general reference to the “lack of compelling medical evidence” is sufficient to discharge this burden, since to date, the applicant had not provided much in the way of medical documentation. However, I note that in its submissions the respondent justified its November 30, 2023 s. 44 request, by arguing that it was scheduled in response to updated medical records received from the applicant’s physician. Given this new medical documentation, the respondent states that it now felt that an IE was warranted. As such, I do not find that this was a situation where no medical documentation had been provided, which limited the respondent’s ability to provide a medical reason or specify what additional information was still required from the applicant.

26In order for an insurer to invoke its s. 44 right to an IE, it must first provide a legally sufficient notice pursuant to s. 44(5). If the respondent’s notice does not comply with section 44(5), an insurer cannot rely on the remedy available in section 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.

27Given that I have found that the NOE was deficient, it is not necessary for me to embark on an analysis as to whether the IEs were reasonably necessary and whether the applicant had a reasonable explanation for his non-attendance.

28For the reasons cited above, I find that the applicant is not barred from proceeding with the issues of the Minor Injury Guideline and the treatment plan in dispute, pursuant to section 55(1)2 of the Schedule.

order

29For the foregoing reasons, I find that:

i. the applicant is barred from proceeding with his claim for NEBs, due to his failure to submit an OCF-10;

ii. the applicant may proceed to a substantive issue hearing with the issues of the Minor Injury Guideline and the treatment plan in dispute.