Volume. 9 Issue. 13 – April 16, 2025
Deficient Notice Renders NEB Payable
This week, the Tribunal considers a claim for NEB and medical treatment, all based strictly upon technical/procedural breaches alleged on the part of the Respondent. While the Applicant was successful concerning NEB, he was not with respect to medical benefits.
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Deficient Notice Costly – Injured in a July 2021 MVA, the Applicant Ali, in 22-013392 v Aviva, sought removal from the MIG and entitlement to NEB and an OCF18 for physical therapy. Ali’s case was focused exclusively on technical and procedural arguments which claim that Aviva failed to comply with notice provisions set out in sections 36(4), 38(8), and 44(5) of the Schedule. To that end, from the perspective of merit, Ali was found by the Tribunal to be within the confines of the MIG and had not established entitlement to either NEB or the OCF18. It was confirmed that Ali failed to provide submissions and lead evidence to support his claim to any of the issues in dispute.
Preliminary Issue
Aviva submitted that Ali was improperly challenging the sufficiency of the respondent’s notices before the Tribunal because this was not raised at the case conference and does not appear as an issue in dispute in the case conference report and order (“CCRO”) for this matter. They relied on Hayles v. Certas Home and Auto Insurance Company, 2023 CanLII 84366 to show it is procedurally unfair for Ali to unilaterally add an issue in his written submissions and expect it to be decided by the Tribunal. Noting that Hayles treats notice arguments as an issue, the Tribunal did not follow Hayles, noting as well that the decision “offers no analysis of why the Tribunal distinguished the notice arguments as issues, which, in my view, is the deep issue here. I therefore see no procedural fairness issues with the applicant’s approach to advocating its position and allow the applicant to rely fully on his notice arguments.” The Tribunal agreed with Ali that the “, application of the Notice Argument …neither constitutes an ‘additional issue,’ nor does it “offend the principles of procedural fairness”.
NEB
The Tribunal found that Aviva’s non-compliance with the Schedule’s notice provisions entitled Ali to NEB., as Ali had demonstrated that Aviva provided a deficient IE notice under section 44(5) of the Schedule and is therefore entitled to the relief at section 36(6) of the Schedule. Ali took the position that “because the rationale provided for the IE (i.e., that the impairments identified in the OCF-3 do not appear to be directly caused by the accident) is unsupported and is therefore a “limited, non-specific explanation” that is incapable of meeting section 44(5) requirements—and specifically the obligation to provide the medical and any other reasons for the examination… the respondent’s requirement for pre- and post-accident medical records fails to support the reasonableness and necessity of the required IEs.”
It was noted that both Ali and Aviva agreed that the reason offered for the IE was: “The impairments identified in the OCF-3 dated September 1, 2021 received on February 3, 2022 do not appear to be directly caused by the accident.” The notice also explains that the respondent requires a copy of the applicant’s pre- and post-accident medical records. In my view, this rationale does not meet the standard set out in 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 ON LAT (“Aviva”). Aviva establishes that: “… 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.” While the respondent indicates that the applicant’s impairments did not appear to be directly caused by the accident, it failed to explicitly provide a basis for this opinion and thereby did not offer its explanation in any way that allowed an unsophisticated person to understand or make an informed decision about how to respond.”
Further, “the respondent’s notice ought to have disclosed why it appeared the applicant’s impairments were not directly accident related. The respondent’s IE notice should have also identified the missing information about the insured’s condition it required to ascertain if the impairments were directly related to the accident. In my view, it is not sufficient to broadly refer to “pre- and post-accident medical records” in this context. The respondent cannot rely on the list of documents it provided in its February 2022 notice (i.e., a decoded OHIP summary, hospital records, family doctor’s records, police report, a copy of the accident benefits file for a previous accident, and an activities questionnaire) because its submissions do not point me to where the March 2022 IE notice refers the applicant to this list in the February 2022 notice.”
Concluding, “on a balance of probabilities, I find the evidence supports the applicant’s position that the respondent’s March 2022 IE notice is deficient, in that “it failed to provide the medical and any other reasons for the examination as required by section 44(5) of the Schedule. In my view, when read together, sections 44(5)(a) and 36(4)(b) harmonize to trigger section 36(6). Both sections 36 and 44 require the respondent to support its actions with “medical and any other reasons.”” Because the respondent availed itself of section 36(4)(b) to require an IE under section 44(5), it inextricably committed to section 36(6) if it failed to comply with section 44(5)(a). I therefore agree that the provisions set out at section 36(6) of the Schedule apply. This means the respondent is obligated to pay the applicant’s NEB claim of $185.00 per week, starting on January 27, 2022, when the respondent received the OCF-1 and OCF-3 according to its February 2022 notice.”
OCF18
The Tribunal agreed with Ali that the pre-existing condition rationale offered in Aviva’s April 2022 notice was not a valid reason for denying the disputed OCF-18. Said notice indicates that “Your health practitioner has not submitted compelling medical evidence, documented by a health professional that would prevent you from achieving maximal medical recovery if you are subject to the goods and services authorized under the Minor Injury Guideline. However, I find the OCF-18 does not indicate the applicant’s impairment is predominantly a minor injury that cannot achieve maximal recovery under the MIG owing to a pre-existing medical condition. Rather, Dr. Arabnezhad indicates the applicant’s impairment is not predominantly a minor injury. I am not pointed to evidence that shows Dr. Arabnezhad, or any other health practitioner determined the applicant’s accident-related impairments could not be treated under the MIG because of a pre-existing medical condition. In my view, the respondent cannot rely on this reason to deny the disputed OCF-18 because it cannot reasonably expect the applicant to produce evidence of a pre-existing medical condition if he is not contesting the MIG on this basis.”
Despite this however, the Tribunal disagreed that Ali had shown Aviva’s notice was deficient. There were in fact two additional reasons for denying the disputed OCF-18 in April 2022. The first being a requirement for an IE to determine if the OCF-18 is reasonable and necessary, the second a reiteration of the outstanding request for medical records, as well as the outstanding request to return a completed consent form for the release of the accident benefits file pertaining to an earlier benefit claim in August 2019. While Aviva did not indicate why it considered these to be valid reasons, there was no need to as Ali bears the onus of showing the notice to be deficient. Ali did not address either of these reasons in its analysis of the OCF-18 and therefore provided no arguments to consider. It was noted to be “improper and procedurally unfair of me to undertake my own analysis of these reasons. In my view, establishing that just one of several reasons for denying a medical benefit is not valid does not show me the respondent’s notice is deficient overall. He should also show that the two other reasons offered in the notice fall short of being “…clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue” (see paragraph 26 of M.B.). As such, the applicant has not met his burden here.”
Therefore, Ali remains in the MIG and is not entitled to the disputed OCF-18 and NEB is payable in accordance with section 12(3) of the Schedule.
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