Licence Appeal Tribunal File Number: 23-003842/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:
Cadnan Abbas
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR:
Jeremy A. Roberts
APPEARANCES:
For the Applicant:
Ivy So, Paralegal
For the Respondent:
Omar Sewhdat, Counsel
HEARD: by Videoconference:
July 3, 2024
OVERVIEW
1Cadnan Abbas, the applicant, was involved in an automobile accident on October 17, 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 the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding on all issues in dispute because he failed to attend s. 44 assessments?
ISSUES
3The substantive issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 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 November 14, 2020 to date and ongoing?
iii. Is the applicant entitled to $2,255.15 for a psychological assessment, proposed by Excell Medical Diagnostics in a treatment plan/OCF-18 (“plan”) dated August 11, 2021?
iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Excell Medical Diagnostics in a treatment plan dated March 31, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent entitled to costs?
RESULT
4The applicant is barred from proceeding on all issues in dispute because he failed to attend s. 44 assessments.
5The respondent is not entitled to costs.
ANALYSIS
Background
6In July 2021 the applicant attended two insurer examination (“IE”) assessments related to entitlement to NEBs. NEBs were denied based on the IE assessments and based on a lack of available medical documentation.
7After the case conference in November 2023, the applicant provided requested medical documentation. Following this, the respondent reached out to schedule new IE assessments via the following correspondence:
i. February 5, 2024: IE assessment with psychologist to determine entitlement to the treatment plans in dispute and the applicability of the MIG.
ii. February 7, 2024: IE assessment with general practitioner to determine entitlement to the treatment plans in dispute and the applicability of the MIG.
iii. March 25, 2024: IE assessment with occupational therapist and general practitioner to redetermine entitlement to NEBs.
8The applicant did not attend any of the scheduled IE assessments. Attempts to reschedule were made. The applicant continued to not attend. No reasons were provided to the insurer on the applicant’s non-attendance.
The applicant is barred from proceeding to a hearing on the issues in dispute because he failed to attend s.44 assessments
9I find that the applicant is barred from proceeding to a hearing on the issues in dispute because he failed to attend s. 44 assessments and did not provide a reasonable explanation for his non-attendance.
10Section 55(1) of the Schedule states than an insured person shall not apply to the Licence Appeal Tribunal under subsection 280(2) of the Act if the insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section. Section 55(2) permits an insured person to apply despite the above, subject to permission being granted by the Tribunal.
11Section 44(5)(a) states that if an insurer requires an examination under this section, the insurer shall give the insured person a notice setting out the medical and any other reasons for the examination.
12The respondent argued that the applicant should be barred from proceeding with their claim for benefits because he failed to attend the scheduled s. 44 assessments for each of the benefits in dispute and did not provide reasons for this failure to attend. It argues that the Notices of Assessment were proper, including the medical and any other reasons required for the assessments. It points specifically to the letters of February 5, 2024, February 7, 2024 and March 25, 2024 as evidence.
13The applicant argued that: (1) the notices of assessment should not be admitted as evidence because they were not served on time, making the argument moot; (2) that even if they were admitted, the notices of assessment provided by the respondent were deficient; and (3) because the notices were deficient the applicant is automatically entitled to the benefits in dispute.
i. On argument (1), the applicant argued that the respondent failed to provide the notices of assessment until a week after serving the notice of motion, meaning that they should not be admitted as evidence. As such, he argues that the respondent has failed to meet its onus on the preliminary motion.
ii. On argument (2), the applicant argued that the respondent’s notices of assessment were deficient because they failed to provide the specific medical reasons as required by s. 44(5)(a) of the Schedule. He further argues that in Tribunal decision F.C. v. Aviva Insurance Canada, 2019 CANLii 130383 the Tribunal found that the requirements in the Schedule for medical any other reasons requires “specific details about the insured’s condition”. Furthermore, he argues that in 16-003316/AABS v. Peel Mutual Company, 2017 CANLii 69452 the Tribunal found that medical reasons “should engage the specific detail about the insured’s condition forming the basis for the insurer’s decision”, which required “meaningful and accurate reasons”. It argues that this Tribunal decision was upheld by the Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 (ONSC 5318).
iii. On argument (3), the applicant argued that because the notices of assessment were deficient, it triggers the following provisions:
(a) Section 36(6) of the Schedule, which states that if an insurer fails to advise the applicant that it requires an examination under section 44 within the applicable time limit, the insurer shall pay for the NEB for the period starting on the day the insurer received the application and completed disability certificate and ending if the insurer subsequently gives a proper notice of assessment. In other words, the applicant is entitled to NEBs from the date the OCF-3 was submitted until the 104-week mark.
(b) Subsection 38(11)(1) and (2) of the Schedule, which state that if an insurer fails to give a proper notice of assessment in connection with a treatment plan, the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and the insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a proper notice. In other words, the applicant is entitled to the treatment plans in dispute regardless of the MIG.
14I am not satisfied by the applicant’s arguments and agree with the respondent that the Notices of Assessment were proper and that the applicant’s failure to attend these assessments bars him from proceeding with his claim.
i. Firstly, I am not satisfied that the Notices of Assessment should not have been admitted into evidence because the applicant did not argue that he did not already possess these documents. These were Notices of Assessment sent directly to the applicant which should have been in his possession. I am satisfied that there is no prejudice to the applicant for having received these documents a week late due to a clerical error (as described by the respondent) given that the applicant already possessed these documents.
ii. Secondly, I am satisfied that these notices provided comprehensive reasons which satisfy the Schedule requirements. In the February 5, 2024 and February 7, 2024 letters, the insurer indicates that the clinical notes and records on file are insufficient to determine entitlement to the treatment plans and applicability of the Minor Injury Guideline, necessitating further investigation, which I find to be sufficient reasoning. Likewise, in the March 25, 2024 letter the insurer notes that there is conflicting information on file, some of which suggests that the applicant’s injuries should be resolved, which necessitate further investigation. Again, I find this to be sufficient reasoning.
iii. Moreover, I find it relevant that the applicant did not raise his objection to attending IEs on the basis of deficient Notices of Assessment until the hearing and did not communicate at all with the insurer when these initial assessments were scheduled. The purpose of s. 44(5)(a), in my view, is to protect an insured from unreasonable assessments, not to provide a shield for an applicant that did not attend. The applicant provided no evidence to suggest that he viewed these assessments as unreasonable. Given that I accept the Notices of Assessment as reasonable, I also reject the applicant’s argument that he is automatically entitled to the benefits in dispute based on procedural defects. Based on these conclusions, I find that the applicant is barred from proceeding.
The respondent is not entitled to costs
15I find that the respondent failed to meet its onus in demonstrating that a request for costs is merited.
16Rule 19.1 provides that a party may request costs of the proceeding if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings.
17Neither the respondent nor the applicant made submissions during closings as to why a request for cost was merited.
18As such, I find that the respondent has not met its onus. The respondent is not entitled to costs.
ORDER
19I order the following:
i. The applicant is barred from proceeding to a hearing on the issues in dispute as a result of failure to attend s. 44 assessments.
ii. The respondent is not entitled to costs.
iii. The application is dismissed.
Released: August 12, 2024
Jeremy A. Roberts
Vice-Chair