Licence Appeal Tribunal File Number: 24-005609/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:
Esther Ruth Lindzon
Applicant
and
TD Home and Auto Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Joshua Lindzon, Counsel
For the Respondent:
Matthew Nieuwland, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Esther Ruth Lindzon (the “applicant”) was involved in an accident on December 9, 2022, 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 TD Home and Auto 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 to a hearing for all of the benefits claimed in this application because she failed to attend insurers’ examinations (“IEs”) under s. 44 of the Schedule?
3The applicant also requests costs payable by the respondent. Pursuant to Rule 19.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”), a request for costs may be made at any time before the decision is released. As such, I will also decide the following issue:
i. Is the applicant entitled to costs payable by the respondent?
PROCEDURAL ISSUES
New Evidence and Additional Submissions
4The applicant attended an in-home occupational therapy IE on April 4, 2023, but a report from that assessment was not produced by the respondent. In the Case Conference Report and Order of September 13, 2024 (“CCRO”), the respondent was ordered to do the following:
i. Use best efforts to make reasonable inquiries from the assessment company that conducted the assessment regarding the existence of clinical notes and records, any s. 44 occupational therapy report, and raw data related to the April 4, 2023, assessment.
ii. To the extent any such documentation exists, request the documentation from the assessment company and provide the following to the applicant no later than 45 calendar days from the case conference:
(a) The clinical notes and records from the April 4, 2023, occupational therapy assessment.
(b) The s. 44 occupational therapy report, if such a report was generated.
(c) If no report exists, the raw data, including any testing results collected during the assessment. If a report is available, no raw data or testing results shall be produced.
5In her submissions, the applicant made a number of arguments regarding the absence of this report and raw data. The respondent contended that a report was not generated after the assessment, and therefore there was no report to produce. However, the respondent did not address the other production orders outlined above.
6On November 27, 2024, after the parties’ submissions had already been provided, the applicant wrote to the respondent and the Tribunal explaining that she had received a copy of the occupational therapy report on November 19, 2024. The report was dated October 22, 2024. In the letter, she made a number of submissions regarding the report and the respondent’s conduct.
7Although the CCRO did not provide the applicant with an opportunity for a sur-reply, I will review this letter and the IE report in this hearing. As I will explain further below, the contents and existence of the IE report are directly relevant to the issue before me. Although it appears that the report was generated on October 22, 2024, and therefore did not technically exist until after the parties filed their submissions, I find it concerning that the respondent insisted that the report did not exist but was suddenly able to have one generated shortly after the submissions were filed. I note that the respondent did not advise the Tribunal that it objected to the applicant’s provision of the letter or report.
8I find that these are exceptional circumstances in which it would be appropriate for me to review the applicant’s letter and occupational therapy report.
Adverse Inference
9The applicant requests that I draw an adverse inference and find that the respondent’s failure to comply with the CCRO demonstrates that she complied with s. 44, and that the disappearance of the report and data supports her. The report was ultimately provided, albeit late. As the applicant and I have copies of the report, and I have allowed it and the applicant’s letter into this hearing, I decline to draw an adverse inference as a result of the initial failure to provide the report or raw data.
RESULT
10The applicant is barred from proceeding with her application for failing to attend insurer examinations.
11The applicant is entitled to costs in the amount of $500.00.
12The application is dismissed. The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
ANALYSIS
Overview
13Section 55(1)2 of the Schedule states that subject to subsection (2), an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44, but they did not comply with that section. Under s. 55(2), the Tribunal may permit an insured person to apply despite s. 55(1)2.
14Under s. 44(1), for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit, but not more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals.
15Section 44(5) of the Schedule requires IE notices to set out (a) the medical and any other reason for the examination, (b) whether the attendance of the insured person is required at the examination, (c) the name of the person who will conduct the examination, any regulated health professional to which they belong and their titles and designations including their specialization, if any, and (d) if the attendance of the insured person is required, the day, time, and location of the examination.
16The respondent scheduled IEs with a physiatrist, psychologist, and occupational therapist to address whether the applicant belongs in the Minor Injury Guideline (“MIG”) and whether she is entitled to non-earner benefits (“NEBs”). The respondent submits that the applicant did not attend the physiatry or psychological assessments, and did not attend the occupational therapy assessment for the purpose of assessing NEBs. The applicant submits that she did attend the occupational therapy NEB assessment. She also argues that transportation services were continuously refused by the respondent, the assessments are not reasonably necessary, and the letters requesting the assessments did not comply with s. 44(5).
The applicant complied with the request for an occupational therapy IE
17On February 21, 2023, the respondent notified the applicant that it required her to attend an IE with an occupational therapist, Dawn Li, on April 4, 2023, for the purpose of addressing NEBs. Confusingly, the respondent acknowledges that the applicant attended this assessment, but also submits that it is still one of the assessments at issue and that she did not attend it. In its reply submissions, the respondent admits that the applicant attended the occupational therapy assessment, but submits that was one of the MIG assessments, and that the assessment for the purpose of addressing NEBs was still at issue.
18The respondent did not point to any evidence that an occupational therapy assessment was ever requested for the purpose of evaluating the MIG. It appears based on the evidence before me that it was only ever requested for the purpose of addressing NEBs. The applicant attended the assessment with Ms. Li, and she opined on the applicant’s entitlement to NEBs. I accordingly find that the applicant complied with the s. 44 request for the occupational therapy assessment.
The physiatry and psychology assessments are reasonably necessary
19The applicant submits that the respondent’s request for assessments with a physiatrist and psychologist are not reasonably necessary. She argues that the occupational therapy IE and raw data from the assessment could have been used to assess the applicant’s entitlement to benefits, but the respondent concealed this evidence. The applicant also submits that the CCRO states that the report and data could be used to determine entitlement to the NEB.
20The CCRO did not establish that the occupational therapy report on its own could be used to determine entitlement to the NEB. It stated that an occupational therapy assessment would be directly relevant to the issue in dispute, and would “assist in determining the applicant’s entitlement to NEBs”.
21Ms. Li’s opinion was that the applicant did not suffer a complete inability to carry on a normal life. However, she also noted that the applicant was experiencing some functional limitations and impairments to her shoulder, but it was beyond the scope of her practice to comment on whether the impairments were accident-related. She also deferred comment with respect to the applicant’s reported light-headedness, numbness in her feet, sleeping difficulties, and low mood.
22An OCF-3 dated December 27, 2022, identifies physical and psychological injuries, including sprains and strains, headache, nervousness, anxiety disorders, symptoms and signs involving emotional state, sleep disorders, dizziness, and radiculopathy. It also indicates that the applicant had a history of neck pain, a left wrist fracture, shoulder pain, low back pain, and sciatica which were all aggravated by the accident. Further, the applicant obtained her own physiatry report, which was authored by Dr. Ghouse on May 15, 2024.
23The applicant’s reported injuries are physical and psychological, and are complicated by pre-existing impairments. I find that the requested IEs involve disciplines that are reasonably related to the applicant’s injuries and impairments, her ability to complete her activities of daily living, whether her injuries place her outside of the MIG, and whether her injuries resulted from the accident. As Ms. Li was unable to comment on a number of the applicant’s symptoms or the cause of her shoulder issues, I do not accept that her report is a sufficient stand-in for the physiatry and psychological IEs. I find that the respondent would be prejudiced in its ability to defend the application if it were not permitted to obtain this evidence.
24I accordingly find that the requested physiatry and psychological assessments are reasonably necessary for determining the applicant’s entitlement to NEBs and the MIG.
The notices were compliant with s. 44(5)
25The applicant submits that all of the respondent’s notice letters were noncompliant with s. 44(5), as they did not provide medical reasons, a diagnosis, or a reference to medical records. She relies on M.B. v. Aviva Insurance Company, 2017 CanLII 87160 (“M.B.”), which states the following:
In my view, an insurer satisfies its obligation to provide its “medial and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, 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. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
26In a letter dated February 1, 2023, the respondent set out the requirements in order to qualify for a NEB. It listed specific diagnoses that were mentioned in the OCF-3 completed by Gordanpour Masha on December 27, 2022, and indicated that those diagnoses did not appear to be consistent with an inability to engage in substantially all of her activities. The respondent noted that it would require the applicant to attend an IE in order to determine her eligibility for the NEB. It explained that the details of the IE would be communicated in a following letter, and on February 21, 2023, it provided information regarding the assessments it had arranged.
27With respect to the IEs for the MIG, on August 10, 2023, the respondent identified the physical injuries listed in a treatment plan submitted by Dr. Charles Joshua dated August 1, 2023, and stated that they were “predominantly soft-tissue injuries in nature and fall within the Minor Injury Guideline”. The respondent also acknowledged that the applicant reported pre-existing conditions which had been aggravated by the accident, and listed those conditions. It stated that it was unable to determine if her pre-existing medical condition was sufficient to exclude her from the MIG, and would have the treatment plan reviewed by an assessor in order to make that determination. Details of the assessment were to follow under separate cover, and they were provided on August 18, 2023.
28I find that these notice letters complied with s. 44(5) as they specifically referenced the applicant’s medical condition and referred to specific documentation. The letters also explained the reasons for the assessments in relation to her medical condition and the benefits at issue. I find that, in accordance with the principles set out in M.B., the medical reasons provided were clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the IE requests.
29I note that the applicant is not suggesting that the respondent was noncompliant with s. 44(5)(b), (c), or (d). In any event, I find that the respondent complied with those sections in its subsequent letters that provided the details of the IEs.
No evidence that the applicant requested and was denied transportation
30The applicant submits that she agreed to attend IEs, but that transportation services were continuously refused. The applicant argues that each and every notice letter specifically denies transportation services. Further, the applicant submits that she called the handling adjuster herself and requested transportation services, which were “vigorously and rudely refused”.
31The respondent submits that it is agreeable to arranging transportation and has never argued otherwise.
32The applicant has not provided any evidence to show that she requested transportation to the assessments, or that this request was denied. The notice letters state the following under the details for each assessment: “Transportation provided: NO”. In my view, this is not compelling evidence that the request for transportation was requested and refused, just that it was not arranged. I have also reviewed the respondent’s log notes and there is no indication that the applicant called the respondent to request transportation or that it was refused.
33I am accordingly not persuaded that this was an excuse for the applicant not to have attended the assessments.
No non-compliance with s. 37(2)
34The applicant submits that the respondent failed to comply with s. 37(2) and has not paid any NEBs. She argues that the NEB should have been paid until a report was authored to support the contrary, and that the respondent is attempting to retroactively hold the applicant in s. 55 non-compliance.
35Section 37(2) provides that an insurer shall not discontinue paying a specified benefit unless an OCF-3 does not support an insured’s entitlement to the benefit, or the insurer received the IE report and determined that they are not entitled to the benefit. This section is not applicable because it speaks to benefits that were paid and discontinued, whereas in the case before me the benefit was never paid. Further, it is not relevant to the question before me, which is whether the applicant failed to attend IEs and is barred from proceeding with her application on that basis.
The applicant is barred from proceeding with her application
36The applicant did not attend the requested psychological and physiatry IEs, which were reasonably necessary. The notices were compliant with s. 44(5). She has not provided a reasonable explanation for her non-attendance. She did not make submissions on why the Tribunal should exercise its discretion under s. 55(2). As such, I find that she is barred from proceeding with her application pursuant to s. 55(1)2 for failing to attend the IEs.
Costs
37Rule 19.1 of the Rules 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. There is a high bar for conduct to attract costs and it is an exceptional remedy. Rule 19.5 sets out the factors for the Tribunal to consider when deciding whether to award costs and the amount to be ordered. Rule 19.6 states that costs shall not exceed $1,000.00 for each full day of attendance at a motion, case conference, or hearing.
38The applicant is seeking costs in the amount of $1,500.00. She argues that the respondent has completely disregarded the Tribunal’s time and procedures, and this preliminary issue hearing is an abuse of process as the applicant complied with s. 44. She also argues that the respondent concealed the occupational therapy IE, and failed to deal with her in good faith during this proceeding.
39I find that the respondent’s actions regarding the occupational therapy IE were unreasonable such that costs are warranted. The respondent was ordered to produce Ms. Li’s report or the raw data from the assessment if such a report did not exist. It did not do so. Instead, it argued that no report was rendered due to the applicant’s failure to attend the full set of assessments, and because an occupational therapist cannot offer an opinion on MIG or NEB. I appreciate that the report did not technically exist until after the parties’ submissions were provided, but clearly it was not impossible for the report to be prepared or for the occupational therapist to opine on NEBs, which is what she was asked to do and what she did. In any event, the respondent did not explain why it failed to provide the raw data or clinical notes from the assessment pursuant to the production order. It appears to me, based on the actions of the respondent, that the completion of the report was unreasonably, if not deliberately stalled until after the parties’ submissions were due.
40I am not prepared to award the full amount sought by the applicant. She did not attend certain IEs and it was not an abuse of process for the respondent to request relief under s. 55. However, the respondent’s conduct with respect to the occupational therapy IE was in breach of the CCRO and interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process. I find that $500.00 is an appropriate award for costs in these circumstances.
ORDER
41The applicant is barred from proceeding with her application for failing to attend insurer examinations.
42The applicant is entitled to costs in the amount of $500.00.
43The application is dismissed. The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: March 4, 2025
Rachel Levitsky
Adjudicator