Licence Appeal Tribunal
Tribunal File Number: 17-009119/AABS
Case Name: R. K. v. Allstate Canada
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:
R. K.
Applicant
and
Allstate Canada
Respondent
AMENDED DECISION
ADJUDICATOR:
Robert Watt
APPEARANCES:
Paralegal for the Applicant:
Nader Fathi
Counsel for the Respondent:
Cary Schneider
HEARD: Written Hearing:
August 13, 2018
OVERVIEW
1The applicant was involved in an automobile accident on December 21, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference, but were unable to resolve the issues in dispute.
3The parties agreed to a written hearing to determine preliminary issues.
PRELIMINARY ISSUES
4The preliminary issues in dispute were identified and agreed to as follows:
i. Is the applicant barred by s. 55 from proceeding with his claim for accident benefits as he failed to submit to an insurer’s examination (“IE”) under section 44 of the Schedule?
ii. Is the applicant is barred by s. 55 from proceeding with his claim for accident benefits as he failed to submit to an examination under oath under section 33 of the Schedule?
iii. Is the applicant is barred from proceeding with his claim for accident benefits as he failed to commence his application within two years arising after the 2015 motor vehicle accident?
iv. Is the applicant is liable to pay costs to the insurer on the account of his actions which are in non-compliance with the Licence Appeal Tribunal Rules of Practice?
RESULT
5The applicant is not entitled to proceed with his claim as he has not attended on an insurer’s examination as required under sections 44 and 55 of the Schedule and has not provided any reasonable explanation as to why he has not attended.
6The applicant is not barred by s. 55 from proceeding with his claim for accident benefits because of his failure to attend an examination under oath. While I find that he failed to submit to an examination under oath under section 33 of the Schedule, s. 55 does not apply to a failure to attend under s. 33. In accordance with s. 33(6) the respondent is not obliged to pay the applicant benefits until he submits to an examination under oath.
7The applicant is not barred from proceeding with his claim for accident benefits because he commenced his application more than two years after the accident
8The applicant is not liable to pay for costs to the insurer.
BACKGROUND
9On or about December 21, 2015, the applicant (now 39) was involved in an accident. He was a self- employed hairdresser at the time. The applicant had pre-accident chronic shoulder pain which the applicant claims has been aggravated by the accident.
10The applicant submitted an application for the cost of a Chronic Pain assessment on November 9th 2017 to the respondent. The respondent denied the claim on November 28, 2017.
11The applicant claims that he has a pinched nerve at the base of the neck causing pain which radiates into his right upper arm. He has returned to work but has trouble with the prolonged standing and sitting which his work requires.
12A Disability Certificate dated December 5, 2017 submitted by Mackenzie Medical Rehabilitation Centre indicates that the applicant suffers a complete inability to carry on a normal life and engage in recreational activities, cooking, cleaning laundry etc. The certificate also states that he suffers a substantial inability to engage in care giving activities. He apparently is the primary caregiver for his three year old son.
13The respondent served on the applicant, a referral to an IE to determine if the assessment was reasonable and necessary. The applicant did not attend and gave no explanation as to why he didn’t attend.
ANALYSIS
Is the applicant barred by s. 55 from proceeding with his claim for accident benefits, as he failed to submit to an insurer’s examination (IE) under Section 44 of the Schedule?
14The Schedule is quite clear under sections 44 and 55 that an insured cannot apply to the Licence Appeal Tribunal for any benefit, if the insured does not attend for the requested IE for the purpose of determining eligibility for that benefit.1
15Under ss. 55(2) and (3), the Licence Appeal Tribunal may permit an insured to apply, despite Section 55(1) and may impose terms and conditions.2
16The applicant made no submissions why he did not attend at the requested s. 44 IE. The submissions simply state that the applicant has “made reasonable efforts by offering his availability to attend”. There are no further explanations in the applicant’s written submissions as to why he didn’t attend, or what efforts were made to attend.
17In the absence of a fuller explanation, I find that the applicant is barred from proceeding with his claim, under sections 44 and 55 of the Schedule. The applicant made no submissions about permitting the matter to continue under sec 55(2) or any terms I might apply under section 55(3). Accordingly I decline to consider the option of permitting the matter to proceed despite his failure to attend the IEs.
Is the applicant barred by s. 55 from proceeding with his claim for accident benefits, as he failed to submit to an examination under oath under section 33 of the Schedule?
18The applicant submitted an OCF-1 on September 25, 2017, relating to the accident that occurred on December 21, 2015. An examination under oath was scheduled by the respondent for March 13, 2018, on consent of the parties. The applicant did not show up. The respondent was later told that apparently the applicant was sick. No medical evidence has been provided to support the applicant’s position that he was sick.
19Section 55 of the Schedule does not prohibit an applicant from proceeding with a claim, if the applicant fails to attend an examination under oath under s.33. Section 55 of the Schedule only relates to s.44 and the non- attendance for an IE.
20Section 33 (6) of the Schedule makes it clear however, that an insurer does not have to pay any benefit where the insured fails to attend an examination under oath.
Is the applicant barred by s.55 from proceeding with his claim for accident benefits as he failed to commence his application within two years arising after the 2015 motor vehicle accident?
21The issue was raised at the case conference hearing by the respondent that the applicant failed to bring his application within two years of the date of the accident. Having this issue raised at the case conference, the applicant failed to make any submissions on the point and may be taken to have abandoned it at the hearing. I note that the respondent denied the applicant’s claim for an assessment on November 28, 2017 giving the applicant until November 28, 2019 to apply to this Tribunal. Clearly he is not out of time.
Is the applicant liable to pay for costs to the insurer on the account of his actions which are in non-compliance with the Licence Appeal Tribunal Rules of Practice?
22The LAT Rules provide that the Tribunal can award costs where a party believes that another party in a proceeding has acted unreasonably, frivolously and vexatiously, or in bad faith.3
23There is no evidence before me to show that the applicant has acted in the proceeding unreasonably, frivolously and vexatiously or in bad faith.
ORDER
24I am not granting an extension under Section 55 of the Schedule to the applicant and I am dismissing the application.
Released: November 19, 2018
Robert Watt
Adjudicator