Smart v. Commonwell Mutual Insurance, 2024 CanLII 81185

Citation: Smart v. Commonwell Mutual Insurance, 2024 ONLAT 22-007633/AABS

Licence Appeal Tribunal File Number: 22-007633/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.

Parties

Between:

Daneisha Smart

Applicant

and

Commonwell Mutual Insurance

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Filipe Santos, Counsel

For the Respondent: Cecil Jaipaul, Counsel

HEARD: By way of written submissions

OVERVIEW

1Daneisha Smart, the applicant, was involved in an automobile accident on June 21, 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, Commonwell Mutual Insurance Group, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The following preliminary issue was raised at the case conference:

i. Is the applicant barred from proceeding to a hearing for substantive issues i, iii, and iv as the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

SUBSTANTIVE 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 MIG limit? Note: $3,113.99 in benefits had been paid to date.

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from July 19, 2020 to June 20, 2022?

iii. Is the applicant entitled to the following medical benefits:

1. $3,696.50 for chiropractic services, proposed by Mackenize Medical Rehabilitation Centre Inc. in a treatment plan/OCF-18 (“plan”) dated June 29, 2020;

2. $225.63 ($1,300.00 less $1,074.37 approved) for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a plan dated September 15, 2020;

3. $2,026.55 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a plan dated January 19, 2021; and

4. $2,210.00 for psychological services, proposed by 101 Assessments in a plan dated December 7, 2021; and

5. $282.50 for transportation expenses, proposed by 101 Assessments in a plan dated August 3, 2022?

iv. Is the applicant entitled to the assessments proposed by 101 Assessments, as follows:

1. $2,460.00 for a psychological assessment, proposed by Dr. Peter Waxer in a treatment plan dated February 4, 2021; and

2. $2,460.00 for a chronic pain assessment, proposed by Dr. Grigory Karmy in a treatment plan dated December 12, 2021?

v. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The applicant is statute barred from proceeding to a hearing on issues i, iii and iv.

5The respondent is not liable to pay a Non-Earner Benefit during the period of the applicant’s s. 33 non-compliance.

6The applicant is not entitled to an award under s.10 of O. Reg 664.

ANALYSIS

The applicant is statue barred from proceeding with issues i, iii, and iv

The applicant is statute barred from claiming certain benefits due to s. 44 non-attendance.

7I find that the applicant is barred from proceeding to a hearing for Minor Injury Guideline (“MIG”) determination, and the medical and rehabilitation treatment and assessment plans disputed under substantive issues iii and iv.

8The respondent submits that the applicant failed to attend s. 44 examinations and as per s. 55 of the Schedule, the applicant is statute barred from proceeding to a hearing on these issues.

9The applicant submits that the s. 44 examinations were scheduled in bad faith, 18 months following the submission of the disputed treatment plans. The applicant also submits that she was in her second trimester of pregnancy.

10The applicant relies on s. 44(9)(2)(i) of the Schedule which dictates that the insurer shall make reasonable efforts to schedule examinations for a day, time, and location convenient for the insured person.

11However, the applicant has not advanced any submissions to show how s. 44(9)(2)(i) was not followed.

12The applicant notes that notice was provided on September 21, 2022 for two s. 44 examinations: a psychological evaluation and an orthopaedic evaluation. These two examinations were scheduled for October 14, 2022 and October 31, 2022, respectively.

13The applicant further submits their response to the insurer, dated October 25, 2022, where the applicant states that they will not be attending the s. 44 assessments, as the applicant believes that the s. 44 assessments were scheduled in bad faith. The applicant also noted that they would not attend due to the fact she was seven months pregnant.

14I note that the applicant’s response was sent after the applicant’s non-attendance at the October 14th assessment, but before the October 31st evaluation.

15There are no submissions advanced by the applicant that would indicate the notice was deficient or that non-attendance was due to not receiving valid notice. Therefore, I accept that both parties agree the notice complied with the Schedule.

16The respondent submits that the s.44 assessments were scheduled in response to a s. 25 assessment which occurred one month before the s. 44 notice was given. The applicant was assessed by Dr. Tajedin Getahun, orthopaedic surgeon, on August 18, 2022.

17I find the s.44 examinations were responsive to the s.25 assessment undertaken by the applicant. Therefore, is no bad faith on the part of the respondent.

18The applicant submits that the non-attendance was due to the fact that the applicant was pregnant. I note that the applicant was able to attend Dr. Getahun’s assessment two months prior. Dr. Getahun noted that the applicant was visibly pregnant.

19The applicant’s pregnancy was a foreseeable complication for non-attendance at the s. 44 assessment, yet the applicant only alerted the insurer after her non-attendance.

20The respondent rescheduled these examinations for April 12, 2023 and April 13, 2023. However, in a letter on April 11, 2023, the applicant’s representative indicated that the applicant would not be attending due to “unforeseen circumstances”.

21By rescheduling these s.44 assessments, the respondent has shown a willingness to work with the applicant to complete the assessments. This is evidence of compliance with s. 44(9)(2)(i) of the Schedule.

22I do not accept “unforeseen circumstances” as a valid reason for non-attendance at a s. 44 examination with valid notice. The applicant has a duty under s. 44(9)(2)(iii) of the Schedule to cooperate with the insurer’s request and the insurer has a similar obligation within the Schedule to make the process as convenient as possible.

23An applicant may not attend at a s. 44 examination if they have a reasonable justification, if the notice is improper or where it is not reasonably necessary. However, on the facts before me, I find that “unforeseen circumstances” does not meet the threshold of reasonability to justify non-attendance where there is a valid notice and the examination was rescheduled to accommodate the applicant.

24For the reasons above, as per s. 55(1)(2) of the Schedule, I find that the applicant is statute barred from pursuing a claim for substantive issues i, iii and iv as she has failed to attend properly scheduled s. 44 assessments.

The respondent is not liable to pay an NEB during periods of s. 33 non-compliance

25I find that the respondent is not liable to pay an NEB as the applicant has not complied with s. 33 of the Schedule.

26Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

27The non-earner benefit has not been paid as the applicant has not complied with a request made under s. 33 of the Schedule.

28A completed OCF-1 and OCF-3 were received by the respondent on July 29, 2020. In a letter dated August 10, 2020 the respondent gave notice to the applicant of its s. 35 request for an OCF-10 election. The respondent also made a s. 33 request for various documents from the applicant in this letter.

29The applicant submits that in her OCF-1, it is noted that the applicant is unemployed, and therefore an OCF-10 is not required. The applicant further submits that the letter sent with the OCF-10 election was confusing because the insurer used incomplete sentences, complicated jargon and no explanation of the differences between NEBs and income replacement benefits.

30The respondent submits that there was confusion over whether an NEB or Income Replacement Benefit (“IRB”) was being sought as Part 6 of the OCF-3 states the IRB disability test. Specifically, Part 6 states that the applicant is unable to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident, which is the test for an IRB. As a result, the respondent asserts that its s. 35 request was valid in the circumstances.

31I agree with the respondent, given that the OCF-3 specifies the income replacement benefit test, there could be confusion as to which benefit was applied for or that the applicant was entitled to. Having viewed the letter dated August 10, 2020, I find that this letter clearly indicated that the insurer was invoking its right under s. 35 of the Schedule to compel the applicant to make an election via the provided OCF-10 form.

32The letter was received by the applicant’s representative, licensed by the Law Society of Ontario, who could have assisted the applicant in completing the OCF-10 election.

33The applicant did not complete the OCF-10 until September 9, 2021. This occurred more than one year after the s. 35 request was made.

34In the letter written by the applicant’s representative on September 9, 2021, they state that the applicant is still sourcing various documents requested in the s. 33 request made on August 10, 2020.

35I note that even if the applicant found the OCF-10 election form confusing, the applicant did not satisfy the s. 33(1) request made in the letter dated August 10, 2020.

36Section 33(6) of the Schedule states that the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with s. 33(1) or s. 33(2).

37In a letter dated September 15, 2021, the respondent reiterated that it required documents as per s. 33.

38The applicant’s letter dated September 9, 2021 is clear and unambiguous, stating that the applicant is still in the process of sourcing the requested documents and has not complied with the s. 33 request of August 10, 2020.

39As there has been no evidence submitted that shows the applicant has complied with the s. 33 requests of August 10, 2020 and September 9, 2021, I find the respondent is not liable to pay benefits as per s. 33(6) of the Schedule.

Interest

40As no benefits are owed, no interest is payable.

Award

41The applicant sought an award under s. 10 of Reg. 664. Under s. 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.

42The applicant’s submissions indicate that they are claiming entitlement to an award as they were unreasonably denied benefits.

43As the insurer is not liable to pay benefits due to the applicant’s non-compliance with s. 33 and s. 44 of the Schedule and her application is statute-barred, I find the applicant is not entitled to the award sought.

ORDER

44For the reasons above, I find that:

i. The applicant is statute barred from proceeding with substantive issues i, iii and iv;

ii. The respondent is not liable to pay an NEB due to the applicant’s non-compliance with s. 33;

iii. The applicant is not entitled to an award under s.10 of O. Reg 664; and

iv. This application is dismissed.