Insurer Fails to Provide Adequate Notice

February 25, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

SL v Certas Home – Proceeding with Application for SAB;  required attendance at IE; sufficiency of notice by insurer; insurer fails to establish detrimental reliance based on the facts;  motion is dismissed.

SL v Certas Home and Auto Insurance Company, 16-000213

Date:     2016-09-13
Heard Before: Adjudicator D. Gregory Flude

DECISION

This is a motion brought by Certas to the Licence Appeal Tribunal to prohibit S.L. from bringing an application for statutory accident benefits (SAB) because she failed to attend an Insurer’s Examination (IE) under s. 44 of the Schedule.

Having considered the evidence and the submissions of the parties the Arbitrator found that Applicant is not prohibited from proceeding with the application.

FACTS:

The underlying facts are not in dispute:

• S.L. was in an accident on July 17, 2011
• She submitted 3 treatment plans dated August 30, September 6 and September 13, 2011and an application for Accident Benefits on September 20, 2011
• On September 29, 2011 Certas sent a notice of an IE to S.L. giving, as a medical reason: “The purpose of this examination is to determine if injuries fall within the minor injury guidelines.”
• The appointment was rescheduled by letter dated October 12, 2011. The October 12 letter states the medical reason is: “The purpose of this examination is to determine if treatment plan is reasonable and necessary.”
• A November 18, 2011 letter rescheduling the medical appointment for December 1, 2011 uses the same wording as the September 29 letter.
• A November 29, 2011 letter setting up an appointment for a psychiatric assessment combines the wording and states: “The purpose of this examination is to determine if injuries fall within the minor injury guideline [sic] and to confirm if treatment plan is reasonable and necessary.
• S.L. did not attend any of the scheduled IEs.
• As a result of her failed attendance Certas did not pay the claim for benefits.
• Certas provided a Cantonese interpreter for each of the scheduled IEs however; S.L. did not attend the scheduled IEs because she indicated that she required a Cantonese interpreter accredited by the Ministry of the Attorney General (MAG).
• Certas took the position that there is no requirement in the Schedule for a MAG accredited interpreter.
• On June 20, 2012 S.L. applied to the Financial Services Commission of Ontario (FSCO) for mediation of Certas’s denial of payment of the three treatment plans. S.L. subsequently filed for arbitration at FSCO on November 20, 2013.
• The arbitration was resolved by order of FSCO dated November 19, 2015. The order states that S.L. was permitted to withdraw her application with costs, which is contrary to the assertion of Ms. Vittorio who states that the proceeding was dismissed.
• On November 21, 2012 S.L. submitted a different type of treatment form to Certas. This form, a treatment confirmation form, is used when it appears that an injured person has suffered predominately soft tissue injuries and permits the insured person to access immediate treatment without the need for approval by Certas. Treatment pursuant to a treatment confirmation form is governed by the Minor Injury Guideline (MIG) and patients utilizing this form are often referred to as “being in the MIG.” The maximum payment for medical and rehabilitation benefits under the MIG is
• $3,500.00. The treatment confirmation form claimed treatment in the amount of $2,015.00, which Certas confirmed it would pay on December 3, 2012.
• In December 2015, over three years after submitting a treatment confirmation form for treatment within the MIG, S.L. submitted a new treatment plan to Certas dated December 14, 2015 for treatment in excess of the MIG limits. She seeks $9,236.48 for various treatments and assessments, including two initial assessments, chiropractic services, acupuncture, manual muscle therapy and an exercise program.
• Certas denied this treatment plan on January 16, 2016. It cited the complete lack of medical documentation received from S.L. since she initiated her claim in 2011 supporting the contention that S.L.’s injuries fall outside of the MIG or that she had a pre-existing condition that would require treatment beyond the MIG limits to ensure full recovery. The only documentation received by Certas on S.L.’s claim was her family doctor’s clinical notes and records, received in 2013, which indicate that she did not report the accident to him.
• Certas did not require S.L. to attend an IE with respect to this treatment plan.
• Certas denied the treatment plan on Jan 16, 2016 citing a complete lack of medical documentation received from S.L. since she initiated her claim in 2011 supporting the contention that S.L.’s injuries fall outside of the MIG or that she had a pre-existing condition that would require treatment beyond the MIG limits to ensure full recovery.
• Certas did not request S.L. attend an IE in respect of this December 14, 2015 treatment plan.

THE ISSUE BEFORE THE TRIBUNAL

Is S.L. precluded from commencing an application regarding Certas’s refusal to pay of the December 14, 2015 Treatment Plan on the basis that she did not attend any of the IEs scheduled in 2011?

ANALYSIS

Certas submits that the current proceeding duplicates S.L.’s 2011 application for benefits. It submits that, as a matter of policy, the Tribunal should not permit an Applicant, who has been medically quiescent for four years, to revitalize her claim by simply submitting a new treatment plan. The difficulty with this submission is that it requires a determination on the merits, and whether the current claim is a restatement of the earlier claims. That determination would require the consideration of evidence about the nature and scope of the earlier claim and the nature and scope of the current claim. On a motion of this nature, the Arbitrator is not able to make findings on the merits. The Arbitrator lacks the evidence and declines to make this finding. It is reserved to the adjudicator who will conduct the hearing.

Certas seeks to invoke the exclusionary provisions of s. 55 (1) of the Schedule to exclude S.L.’s application to this Tribunal, and that the Insurance Act addresses “entitlement to statutory accident benefits,” not to a specific benefit as set out in a claim form. It addresses benefits at large. S.L.’s failure to attend an IE prohibits her from applying to the Tribunal for any benefit, whether that benefit is related to the condition being assessed at the IE or not.

Certas also submits that S.L. failed to raise the   adequacy of the notice in the earlier proceeding, and therefore the Arbitrator should not consider the sufficiency of its because by failing to raise the question of the sufficiency of the notices in the earlier proceeding, S.L. has prejudiced Certas by foreclosing its right to correct the defective notices. The Arbitrator was not persuaded by this submission.

S.L. submits that the December 14, 2015 Treatment Form creates a new and independent obligation on Certas to adjust S.L.’s claim untainted by the issues in the earlier proceeding. In S.L.’s submission, the only ground upon which S.L. could be denied a hearing before the Tribunal with respect to the December 14, 2015 treatment plan would be if she failed to attend an IE arranged by Certas to address the issues raised in that plan. Since Certas has not requested that she attend such an IE, she is entitled to have her dispute heard.

In the alternative, S.L. submits that, if an earlier failure to attend an IE precludes an insured person from applying to the Tribunal for the resolution of a dispute in respect of any statutory accident benefits, the onus is on Certas to prove that it served S.L. with notice in accordance with the Schedule. According to S.L. the notices are defective.

The onus of satisfying the Arbitrator that the exclusion applies rests with Certas. The wording of s. 55(1) 2 is unambiguous. It has two elements. The first element is that Certas must prove that it provided S.L. with notice of an examination in accordance with the Schedule. The second element is that S.L. failed to attend. S.L. did not attend the scheduled examinations. The dispute at the time was focused on the qualifications of the interpreter retained by Certas to assist at the examinations. The dispute was resolved when the Appellant withdrew her arbitration application to FSCO. Contrary to the assertion of Certas that the application was dismissed, it was not. No determination was made on the merits of the application. The Arbitrator saw nothing arising out of that action that relieves Certas of its regulatory obligation to provide proper notice.

Sufficiency of Notice

The current version of the Schedule came into effect in September, 2010. Among the amendments contained in this version was a change to the regulation concerning the notice that was to be given to an insured person when the insurer required an IE.

The Arbitrator reviewed the law and determined that previous cases concluded that where there is a dispute whether the MIG applies the insurer must state that it has reviewed the MIG and the treating health practitioner’s opinion and concluded that they do not provide compelling evidence that the injuries fall outside the MIG or that the treatment is reasonable or necessary. 

Certas submits that the failure of S.L. to raise the issue of defective notice in the earlier proceeding has prejudiced it. In its submission, it states that had it been aware of S.L.’s position, it could have sent out amended notices. The Arbitrator found that Certas has not established detrimental reliance based on the facts. On this basis, the motion is dismissed.

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