Licence Appeal Tribunal File Number: 22-008495/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:
Silvia Gonzalez
Applicant
and
Unifund Assurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Anna Marie Musson, Counsel
For the Respondent:
Marim Hadi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Silvia Gonzalez, the applicant, was involved in an automobile accident on January 2, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Unifund Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The respondent has raised the following preliminary issue:
i. Is the respondent not liable to pay benefits per s. 33(6) of the Schedule as the applicant has not complied with a request under s.33(1)?
SUBSTANTIVE ISSUES
3The substantive issues in dispute are:
i. Is the applicant entitled to $2,486.00 for a Chronic Pain Assessment, proposed by Downsview Healthcare in a treatment plan dated July 22, 2022?
ii. Is the applicant entitled to $2,486.00 for an Orthopaedic Assessment, proposed by Downsview Healthcare in a treatment plan dated December 20, 2022?
iii. Is the applicant entitled to $2,486.00 for a Psychological Assessment, proposed by Downsview Healthcare in a treatment plan dated August 9, 2022?
iv. 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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The respondent is not liable to pay benefits per s. 33(6) of the Schedule as the applicant has not complied with a request made in s.33(1) of the Schedule. As a result, the applicant is not entitled to any of the above substantive issues.
PROCEDURAL ISSUES
5In a notice of motion submitted on January 24, 2024 the respondent raised the following procedural issue:
i. The respondent alleges that the applicant’s reply submissions contained new arguments and evidence relating to the substantive issues in dispute and that these submissions should be disregarded or that the respondent should have the right of sur-reply.
6I find that it is not necessary to address this motion as I have found that the respondent is not liable to pay benefits per s. 33(6) of the Schedule.
ANALYSIS
The respondent is not liable to pay benefits per s.33(6) of the Schedule
7In their written submissions, the respondent noted that the applicant has failed to comply with requests made under s.33(1) of the Schedule. Section 33(1) provides that the applicant shall, within 10 business days after receiving a request from the insurer, provide requested information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
8The respondent submits that they are not liable to pay benefits, pursuant to s.33(6) of the Schedule, which states, “The insurer is not liable to pay a benefit in respect to any period during which the insured person fails to comply with subsection (1) or (2).”
9The applicant in their reply submits that they have made best efforts to obtain the requested productions and that the applicant should not be penalized for third parties not responding or providing requested documentation.
10The applicant further submits that the respondent has access to alternative avenues of receiving documentation they deem necessary to determine if a medical assessment should be approved and that the medical issues in dispute are assessments, and extensive medical records are not required to determine the entitlement to the benefit.
11A s.33 request was made by the respondent for the following documents in an explanation of benefits dated August 2, 2022:
i. Clinical notes and records from the applicant’s family physician from January 1, 2018 to present;
ii. Clinical notes and records from any clinics/RNs/Hospitals the applicant has visited from January 1, 2018 to present;
iii. Clinical notes and records of any specialists the applicant visited from January 1, 2018 to present; and
iv. Decoded OHIP summary from January 1, 2014 to present.
12This request was re-iterated in an explanation of benefits dated August 23, 2022 and again in an explanation of benefits dated January 9, 2023.
13None of the documents requested in the s.33 request were provided to the Tribunal as part of their parties’ evidence or submissions, nor has evidence been adduced to show that the s.33 request was satisfied.
14I agree with the position of the respondent. Clinical notes and records from the providers are integral to the determination of the reasonableness and necessity of medical assessments.
15The Schedule puts the onus on the applicant to provide any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.
16It is well settled that clinical notes and records of the applicant’s family physician and/or specialists covering the post-accident period are reasonable requests. It is also well settled that a decoded OHIP summary is reasonable as it allows the insurer to identify providers visited and further refine their search for clinical notes and records.
17The applicant has not provided evidence of the attempts made, nor have they provided details on the timing and frequency of these requests and any responses provided by the providers. Without such evidence detailing their attempts, it is not possible for me to evaluate the applicant’s submission that they made best efforts or to accept this submission.
18As the applicant has control over these documents, the applicant has a duty, which is outlined in the Schedule to take steps to source the requested documentation.
19The applicant has not complied with a request made under s.33(1). Therefore, I find that the respondent is not liable to pay benefits during periods of non-compliance as per s. 33(6) of the Schedule.
Interest
20As there are no benefits owing, no interest is payable.
Award
21As the insurer is not liable to pay benefits due to s.33 non-compliance, there is no basis upon which to consider an award.
ORDER
22For the reasons above, I order that:
i. The insurer is not liable to pay benefits as per s. 33(6) of the Schedule;
ii. The applicant is not entitled to an award under s.10 of O. Reg 664; and
iii. This application is dismissed.
Released: September 12, 2024
Julian DiBattista
Vice-Chair