Date: 2018-06-07

Tribunal File Number: 17-007036/AABS

Case Name: 17-007036 v Aviva Insurance 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:

The Applicant

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

Counsel for the Applicant:

Piera A. Segreto

Counsel for the Respondent:

Jennifer Cosentino

Written Hearing:

April 17, 2018

OVERVIEW

1The applicant, [the applicant], was injured in an accident while riding his bicycle on October 20, 2016, sustaining injuries to his neck, shoulder, back, elbow and head as a result. He missed time from work as a barber and stylist due to his injuries and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (Schedule).

2Aviva denied the medical benefits and an income replacement benefit (IRB) on the grounds that [the applicant] did not attend an s. 44 Insurer’s Examination (IE) and that the treatment and assessment plans were not reasonable and necessary. [the applicant] disagreed with Aviva’s decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute. The parties participated in a case conference but were unable to resolve the issues, and proceeded to this hearing.

ISSUES TO BE DECIDED

3The following are the issues to be decided, as per the case conference order of Adjudicator Ferguson, dated February 27, 2018:

Preliminary Issue

i. Is the applicant prevented from filing an appeal in this matter pursuant to s. 55 of the Schedule because he failed to attend an insurer’s examination (IE) as required under s. 44 of the Schedule?

Substantive Issues

i. Is the applicant entitled to receive a weekly income replacement benefit for the period of October 27, 2016 to date and ongoing?

ii. What is the amount of weekly income replacement benefit that the applicant is entitled to receive?

iii. Is the applicant entitled to receive a medical benefit in the amount of $4,374.90 for occupational therapy, recommended by Functionability Rehabilitation in a treatment plan dated September 29, 2017, denied by the respondent on November 29, 2017?

iv. Is the applicant entitled to payments for the cost of examinations in the amount of $1,995.60 for an in-home occupational therapy assessment, recommended by Functionability Rehabilitation in an assessment plan dated August 17, 2017 denied by the respondent on September 13, 2017?

v. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4On the preliminary issue, I find that [the applicant] is statute-barred from applying to the Tribunal pursuant to s. 55(1)2 for failing to attend a properly scheduled s. 44 IE.

5As I have found that [the applicant] is prevented from applying to the Tribunal until such time as he attends the s. 44 IE, I have not embarked on an analysis of the substantive issues in dispute.

6Accordingly, no award or interest is payable.

ANALYSIS

Is [the applicant] statute-barred from applying to the Tribunal under s. 55?

7Yes. I find that Aviva’s request for a s. 44 neurological IE was reasonably necessary in order for it to determine [the applicant]’s entitlement to an IRB and in-home occupational therapy (OT) treatment. Section 44 indicates that an insurer may require and request an examination to determine if an insured is entitled to a specified benefit. Section 55(1)2 then acts as a bar to the insured in the event of non-attendance at a properly scheduled IE. By requesting the IE, Aviva was within its rights and I find that its decision to have [the applicant] attend an IE was based not only on the alleged inconsistencies it discovered in the OCF-18’s and the work history submitted by [the applicant], but also on the recommendation of [the applicant]’s own assessors. Ultimately, [the applicant] refused to attend and has not provided evidence that Aviva’s notice or reasons were not in compliance with the Schedule.

8[The applicant]’s refusal to attend was centred on the belief that an IE for services from the same provider whose assessment was previously denied was unreasonable. In a letter dated December 4, 2017, [the applicant] questioned the reasonableness of Aviva’s IE request and indicated that he would not attend as a result. A second letter, sent ten days later, indicated that [the applicant] would also not attend the rescheduled IE for the same reason. [the applicant]’s refusal to attend the IE when his own medical professionals recommended he do so is difficult to justify. Of note: [the applicant]’s occupational therapist, Kathleen Lawrence, indicated in her Report that there were barriers to [the applicant]’s recovery and recommended a neurology assessment; this recommendation was supported by [the applicant]’s family doctor, Dr. Samuel, in his OCF-3 dated November 1, 2017. In my view, these facts, in context with [the applicant]’s well-documented psychological and emotional struggles in his personal and work life, undermine the argument that the neurological IE was unreasonable or unnecessary.

9Aviva’s notice and reasons for the IE also satisfy the requirements outlined in the Schedule and the Tribunal’s jurisprudence.² For example, Aviva’s notice letter of October 23, 2017 indicates that it required an updated OCF-3 from [the applicant] and that he would be required to attend an IE to assess his IRB entitlement. On November 30, 2017, Aviva provided notice that the IE had been scheduled, on the basis that “there appears to be pre-existing or concurrent medical conditions exists that might affect the patient’s care, treatment and prognosis; The type(s) of treatment does not appear consistent with the patient’s diagnosis.” The Notice letter provided the date and time, the dispute mechanisms available to [the applicant] and arranged for transportation to the IE. Additionally, Aviva’s letter of December 15, 2017, confirming that [the applicant] would not attend the rescheduled IE, provided unequivocal notice that non-attendance would trigger s. 55(1)2, result in the suspension of [the applicant]’s IRB entitlement and may prevent him from being able to apply to the Tribunal.

10On these facts, I find Aviva’s request and conduct to be reasonable. [the applicant] was on notice of the potential consequences of his non-compliance and chose not to attend the IE, despite his own medical professionals recommending he do so. Accordingly, I find that he is statute-barred from applying to the Tribunal until such time that he attends the s. 44 IE.

11I note that s. 55(2) permits the Tribunal to allow an insured to apply despite being statute-barred under s. 55(1)2. As I find that [the applicant]’s reason for non-compliance with Aviva’s s. 44 IE request was not reasonable, I decline to exercise the discretion afforded by s. 55(2).

CONCLUSION

12I find that [the applicant] is statute-barred from applying to the Tribunal, pursuant to s. 55. As I have found that [the applicant] is prevented from applying to the Tribunal until such time that he attends the s. 44 IE, I have not embarked on an analysis of the substantive issues in dispute. No award or interest is payable.

13The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2See, for e.g., the Tribunal’s Reconsideration in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT).