Canada: Two Decisions From The Licence Appeal Tribunal

Last Updated: October 17 2016
Article by Leanne A. Zawadzki

Effective April 1, 2016, the Licence Appeal Tribunal began accepting applications to the new Automobile Accident Benefits Service (AABS) system with an aim to quickly resolve disagreements between individuals and insurance companies about statutory accident benefits.

Since then, we have received a handful of decisions from the Tribunal, two of which are summarized below.

S.L. v Certas Home and Auto Insurance Company

In S.L. v Certas Home and Auto Insurance Company, 2016 CanLII 60726 (ON LAT), released September 13, 2016, the Adjudicator found that the Applicant was not prohibited from proceeding with her Application for Arbitration despite her failure to attend an Insurer's Examination five years earlier.

The Insurer had brought a Motion in writing to the Licence Appeal Tribunal to prohibit the Applicant from bringing her Application for Accident Benefits because she failed to attend an Insurer's Examination (IE) under section 44 of the Statutory Accident Benefits Schedule – Effective after September 1, 2010.

The issue to be determined was whether the Applicant was precluded from commencing an Application regarding the Insurer's refusal to pay a December 14, 2015 Treatment Plan on the basis that she did not attend any of the IEs scheduled in 2011 to address her entitlement to various benefits.

The Tribunal considered section 55 of the Schedule which provides that:

55. (1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:

2. 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.

The Tribunal noted that the wording of section 55(1) 2 was unambiguous and had two elements. The first element was that the Insurer must prove that it provided the Applicant with notice of an examination in accordance with the Schedule. The second element was that the Applicant failed to attend the scheduled assessment. The onus of satisfying the Tribunal that section 55 applied rested with the Insurer.

In this case, it was clear that the Applicant did not attend the scheduled examinations, so the issue was whether the Insurer provided proper notice. The notices in this case which were issued in 2011 provided as follows:

  • "The purpose of this examination is to determine if injuries fall within the minor injury guidelines."
  • "The purpose of this examination is to determine if treatment plan is reasonable and necessary."
  • "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."

The Tribunal referenced previous FSCO case law on the issue of the sufficiency of notice, such as Augustin v Unifund Insurance Company, FSCO A12-000452.

In particular, the Tribunal reviewed Arbitrator Sapin's finding in that case that the minimum requirements to satisfy the obligation to provide medical and other reasons for the IE, where there is a dispute whether the minor injury guideline (MIG) applies, is that 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. The Tribunal noted that while it was not bound by decisions of FSCO, Arbitrator Sapin's reasons in Augustin were persuasive.

Therefore, applying Augustin, the Tribunal concluded that the 2011 notices failed to set out adequate medical and other reasons for the IEs. While each letter identified the purpose of the IE, none of them detailed the reasoning behind the requirement for the IEs, such as a review of the medical grounds in the treatment plans and why these grounds failed to establish that the Applicant's injuries were outside the MIG. As such, the Motion was dismissed and the Applicant was allowed to proceed to a Hearing on the merits.

Furthermore, the Tribunal would give no consideration to any estoppel arguments advanced by the Insurer based on the Applicant's late position that the notices were defective. According to the Tribunal:

The Augustin decision, calling into question the adequacy of the type of wording used by the Insurance Company in 2011, was released in November 2013. It was open to the Insurance Company, at that time, to revisit its notices and correct the defect. No action by the Applicant prevented it from doing so. What, in fact, occurred was that the Applicant abandoned its 2011 claim. The denial of those claims having occurred in 2011, it (sic) is long past the limitation period for any further appeal on the denial. The Insurance Company ultimately benefitted from the Applicant's failure to assert the sufficiency of the 2011 notices.

Overall, the Insurance Company's position with respect to the Applicant has not been changed or compromised in any way. Its position has always been that the Applicant falls within the MIG. In 2011 it sought to have the Applicant attend at IEs to confirm or contradict that position. In 2016, the Applicant filed another treatment plan suggesting she does not fall within the MIG. Since receiving the December 14, 2015 treatment plan, it remains open to the Insurance Company to serve the appropriate notice for her to attend one or more IEs. The Insurance Company is in exactly the same position with respect to this treatment plan as it was in 2011 in respect of the three earlier treatment plans.

K.P. v Aviva Canada Inc.

In K.P. v Aviva Canada Inc., 2016 CanLII 60727 (ON LAT), released September 1, 2016, Vice-Chair Flude found that the Applicant suffered predominantly minor injuries and was therefore not entitled to payment for the balance of a physiotherapy treatment plan.

The documents submitted by the Applicant disclosed that the Applicant appeared to have a number of conditions and symptoms, including the following:

Calcific tendonosis of the supraspinatous [sic] and infraspinatous [sic] tendons of the left shoulder; impingement syndrome of the shoulder; paresthesia and numbness of the left shoulder; nerve injury; decreased sensation of C6; whiplash associated disorder [WAD 2] with neck pain and musculoskeletal signs; lumbar sprain/strain; radiculopathy of the lumbar region; chronic C/5, T/S and L/5 dysfunction and right hip dysfunction; low back pain radiating to the buttock and thigh; and, tingling in the foot.

The Vice-Chair noted that while the above list was extensive, the difficulty was that there was no medical evidence that either tied any specific condition to the accident, or that indicated that any specific condition or symptom was anything more than a soft tissue injury or a condition arising out of a normal lifestyle that arose independent of the accident. Furthermore, there was nothing to indicate that "impingement syndrome of the left shoulder" was brought about by or exacerbated by the accident as opposed to a strain arising from overuse of the joint or any other activity of the Applicant.

After reiterating that the onus of proof is on the Applicant to prove that she was entitled to a higher level of coverage outside of the MIG limits (Scarlett v Belair Insurance, 2015 ONSC 3635 (CanLII)), the Tribunal found that the evidence submitted was insufficient to meet that onus and was "far short of compelling."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Leanne A. Zawadzki
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