J. B. W. vs. Aviva General Insurance, 2019 ONLAT 18-008128/AABS
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:
J. B. W.
Appellant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Anita Goela
APPEARANCES
Representative for the applicant: Andrej Rondas
Counsel for the respondent: Andrea Bandow
Written Hearing: July 29, 2019
REASONS FOR DECISION
OVERVIEW
1The applicant was involved in a motor vehicle accident on August 14, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule”).
2The respondent denied the applicant a chiropractic treatment plan on the basis that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and fall within the Minor Injury Guideline (“the MIG”)2.
3The respondent requested that the applicant attend a section 44 insurer examination (“IE”) with a General Practitioner to determine the applicability of the MIG and whether the disputed treatment plan was reasonable and necessary. The applicant did not attend the requested IE.
4The applicant has applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of their dispute over his entitlement to the chiropractic treatment.
5The respondent’s position is that the applicant is barred from proceeding with his application because he did not attend the IE in accordance with section 55(1)2.
6If the respondent is correct, then I will not consider the applicant’s entitlement to the chiropractic treatment. However, if I find that the application can proceed, then I will determine his entitlement to the treatment plan.
ISSUES IN DISPUTE
7The preliminary issue in dispute is as follows:
i. Is the applicant restricted by section 55(1)2 of the Schedule from bringing an application under section 280 of the Insurance Act because he did not comply with a section 44 IE request?
8The substantive issues in dispute are as follows:
ii. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
iii. Is the applicant entitled to a medical benefit in the amount of $4,042 for chiropractic treatment recommended by Life Harmony Rehab Clinic in a treatment plan (OCF-18) submitted on December 14, 2016 and denied on December 23, 2016?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
9I find that the applicant is barred from proceeding with his application because he did not comply with the section 44 IE request.
10Accordingly, the substantive claims in his application – the applicability of the MIG and entitlement to the disputed chiropractic treatment – cannot proceed until he attends the requested IE.
ANALYSIS
Attendance at IE
11A case conference was held on January 17, 2019. The applicant did not attend as he was out of the country and would not return until April 2019. The case conference adjudicator scheduled hearing submissions for dates in June and July 2019 to allow sufficient time for the applicant to attend the requested IE and for a report to be produced.
12As of the date reply submissions were filed, the applicant still had not attended the requested IE.
13In reply submissions, the applicant indicated that he had agreed to attend a future IE on July 25, 2019. However, that IE was requested for treatment plans that are not part of this application.
14Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided notice that it requires an examination under section 44, but the insured has not complied with that section.
Requests for IE
15The applicant submitted a chiropractic treatment plan dated December 9, 2016. The respondent denied the treatment plan on December 23, 2016.
16The respondent scheduled an IE for January 9, 2017.
17The applicant requested that the IE be rescheduled to a date after February 1, 2017. It was rescheduled to February 2, 2017.
18The applicant then requested that the IE be rescheduled to a date after February 15, 2017. The respondent rescheduled to February 23, 2017.
19The applicant did not attend the IE on February 23, 2017. The respondent was not aware the applicant would not be attending. The only explanation provided by the applicant was that he continued to be out of the country.3
20Section 44(9) provides that the insurer shall make reasonable efforts to schedule an examination for a day, time and location that are convenient for the insured. I find that the respondent made reasonable efforts to schedule the IE according to the applicant’s availability.
Proper notice of denial – medical reason provided
21Section 38(8) provides than an insurer shall notify an insured of the medical and other reasons why a claim is denied. Section 38(11) provides consequences if the notice is found to be deficient, including that the insurer is prohibited from taking the position that the MIG applies.
22In reply submissions, the applicant raises for the first time that the respondent’s notice was deficient. Specifically, the applicant submits that the medical reason provided is vague.
23The medical reason provided in the denial is as follows:
“Upon review of the minor injury guideline and the treating practitioner’s medical opinion, we have concluded that the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.”
24The respondent’s notice indicates that the criteria for the MIG was considered and applied to the applicant’s claim. The respondent considered the medical opinion of the treating practitioner and concluded that compelling evidence was not provided that the applicant’s injuries were not minor.
25I find that a medical reason was provided explaining why the insurer considered the treatment not to be reasonable and necessary. The respondent determined that a review of the applicant’s evidence resulted in a determination that his injury was minor and the MIG applied. I do not find that the notice was deficient.
Reasonable explanation for failure to attend IE
26I do not find that the applicant had a reasonable explanation for failing to attend the IE. The respondent rescheduled the IE twice to accommodate the applicant’s travel schedule. Further, the case conference order dated February 15, 2019 also extended the filing of submissions in this hearing to facilitate the applicant’s attendance at the requested IE.
27Other than indicating that he continued to be out of the country on the date of the IE rescheduled to February 23, 2017,4 the applicant has not provided any reasonable explanation for his non-attendance. He has not explained why he did not reach out to the respondent beforehand to reschedule the February 23, 2017 IE as he had twice previously. He also has not explained why he has yet to attend an IE to assess his entitlement to the disputed chiropractic treatment despite the Tribunal extending the filing of submissions to accommodate his attendance.
May apply despite non-compliance
28Section 55(2) permits the Tribunal to allow an insured person to apply to the Tribunal despite non-compliance with section 44.
29In reply, the applicant indicated that he has agreed to attend a future IE with a General Practitioner for treatment plans that are not included in this application.
30The applicant did not provide any submissions whether his attendance at that IE may have been adequate for the purpose of also assessing his entitlement to the chiropractic treatment at issue here.
31In the circumstances, I am not satisfied that I should exercise my discretion under section 55(2) to permit the application to proceed.
CONCLUSION
32I order that the application is barred from proceeding until the applicant complies with the IE request.
33As I have found that the application is barred in accordance with section 55(1)2, I am not making a finding on the issues of the applicability of the MIG or whether the disputed treatment plan is reasonable and necessary.
34The parties shall make reasonable efforts to schedule the requested IE within three months of the release of this decision.
35After the IE report has been received, the parties may request a case conference to continue the application.
Released: October 28, 2019
Anita Goela
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act.
- Applicant’s initial submissions, paragraph 17
- Applicant’s initial submissions, paragraph 17