Licence Appeal Tribunal
Tribunal File Numbers: 18-000751/AABS, 18-001161/AABS, 18-000345/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:
B.H.
Applicant
and
Aviva Insurance Canada
Respondent
REASONS FOR DECISION AND ORDER
Adjudicator: Sandeep Johal
APPEARANCES:
Counsel for the Applicant: Aryan Kamyab
Counsel for the Respondent: Kimberley Tye
Heard in writing on: July 8, 2019
OVERVIEW
1The applicant was injured in three separate automobile accidents that occurred on February 5, 2016, June 1, 2016 and August 29, 2016. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for a non-earner benefit (“NEB”) and other medical benefits which were denied by the respondent on the basis that the applicant failed to attend section 44 insurer examinations (“IE”). The applicant disagreed with that decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3At the case conference on June 28, 2018 the respondent raised a preliminary issue that the applicant is barred from proceeding with the Tribunal application for NEB’s and certain medical benefits as a result of his non-attendance of section 44 IE examinations. A written hearing was scheduled for November 12, 2018.
4On or about August 3, 2018 applicant’s former counsel brought a motion to the Tribunal to be removed as counsel of record for the applicant. As a result, a new case conference was to be scheduled to allow the applicant sufficient time to retain new counsel.
5A case conference was eventually held on April 23, 2019 with new submission dates set for the parties as well as a new written hearing date on the preliminary issue set for July 8, 2019.
PRELIMINARY ISSUE TO BE DECIDED
6The following is the preliminary issue to be decided:
i. Is the applicant precluded from applying to the Tribunal in accordance with section 55(2) of the Schedule with respect to the NEB and medical benefits as he did not comply with the respondent’s request for him to attend section 44 insurer examinations?
RESULT
7Based on the totality of the evidence before me, I find the applicant is barred by virtue of section 55(2) from commencing his Tribunal application to dispute the NEB denial and the medical benefits that are subject to an IE as a result of non-compliance with a section 44 IE request until such time that the applicant attends the IE assessments.
ANALYSIS
Duty to participate in IE’s
8The applicant has a duty to participate in IE assessments that are reasonably necessary and there must be a reasonable explanation provided for non-attendance.
9Section 44(1) of the Schedule governs the IE process for the purpose of assisting the insurer to determine if the applicant is or continues to be entitled to a benefit under the Schedule for which an application is made but not more often than is reasonably necessary. The respondent may require an insured person to be examined under this section by one or more persons chosen by the respondent who are regulated health professionals.
10Section 44(5)(a) of the Schedule states that if the respondent requires an IE, it shall give the applicant a notice setting out the medical and any other reasons for the examination.
11The respondent set up IE’s for the applicant to attend on May 12, 2016 and on May 27, 2016. The applicant’s counsel at that time responded by way of email on May 11, 2016 notifying the respondent that the applicant will not be attending the IE’s on those dates as they are not convenient for the applicant.
12The respondent proceeded to send two letters dated June 1, 2016 and again on July 20, 2016 asking for the applicant to provide a date and time suitable for him in order to set up IE assessments to determine his entitlement to the NEB and medical benefits. Applicant’s counsel responded to advise that the applicant was involved in another accident and requested additional time for the applicant to attend the IE’s, with a proposal for dates in September or October 2016.
13The applicant was involved in a third motor vehicle accident on August 26, 2016 and requested that the respondent schedule the IE’s in October or November 2016.
14The respondent complied and sent a letter dated October 26, 2016 scheduling IE assessments for November 2, 10, and the 24th. According to the respondent, the applicant did not attend and the applicant submits the notice was deficient as it did not meet the requirements of a proper notice under the Schedule.
15The applicant does not provide further submissions on what the deficiency is in the notice and how it does not comply with section 44 of the Schedule.
16Upon review of the letter dated October 26, 2016 from the respondent, it would appear that the first scheduled IE of November 2, 2016 is only four business days notice when section 44(6) of the Schedule requires no less than five business days. Other than the November 2, 2016 IE assessment not being in accordance with the proper notice period, I am not provided with any submissions or evidence on why the applicant is not able to attend the other scheduled IE’s on November 10 or the 24th or why those dates are not convenient. Furthermore, the applicant does not provide any submissions on why the notices for those dates on November 10 and the 24th may not be proper under the Schedule.
17In response, the respondent complied with the applicant’s request and on November 28, 2016 the respondent sent another notice to the applicant for new IE dates, this time for December 7, 21, 28, 2016 and January 4, 2017.
18On December 12, 2016 applicant’s counsel wrote to the respondent to advise that the December 7, 2016 IE was sent without sufficient notice and that the dates of December 21, 28 and January 4, 2017 are not convenient times or dates even though they were within the time frame requested by the applicant of 10:00 a.m. to 3:00 p.m. Furthermore, I do not agree with the applicant that the December 7, 2016 IE date was selected without enough notice. The Schedule requires no less than five business days notice of the IE. The respondent provided six business days notice.
19Despite the fact that the notice was given with six business days before the IE was to take place, the respondent further tried to accommodate the applicant’s request according to the adjuster’s log note dated December 14, 2016. The entry on that day stated that a letter was sent to the IE assessment company to reschedule the IE assessments in accordance with applicant counsel’s instructions to have the psychological IE assessment first, with subsequent assessments scheduled two weeks apart and between 10:00 a.m. and 3:00 p.m.
20On February 14, 2017 the respondent sent another notice for the IE assessments to take place and in accordance with the instructions as set out by the applicant. The IE’s were scheduled for February 23, March 9, March 23, and April 11, 2017. Each assessment is 2 weeks subsequent to each other and scheduled between the times of 10:00 a.m. and 3:00 p.m.
21On March 1, 2017 applicant’s counsel wrote to the respondent that the applicant will not be attending the IE’s scheduled for March 23 and April 11, 2017 because they are not convenient for the applicant. In the letter, the applicant puts a further condition to his attendance at the IE’s which were not communicated previously. The applicant now requests that as a result of being unable to tolerate travelling long distances he now seeks the IE’s to be scheduled between 11:00 a.m. and 2:00 p.m. and at a location close to his residence.
22The applicant provides no further explanation as to why this is required, whether it is as a result of a medical condition and why this request was not made earlier. Without any further explanation or evidence of a medical condition that does not allow the applicant to tolerate travelling long distances during rush hour it is difficult to conclude this is a reasonable explanation. Especially considering that the respondent was arranging transportation to take the applicant, to and from the assessment and the fact that it was not communicated to the respondent in several earlier communications.
23I agree with the respondent, other than the four business days notice which was rescheduled, I find that the respondent made all reasonable attempts to accommodate the applicant’s requests for accommodation in terms of the days the IE’s were scheduled, the length of time between each one and what time they were to be scheduled during the day. The respondent also agreed to provide transportation to and from the IE assessor’s office.
24The fact that the applicant has repeatedly stated that the dates selected by the respondent were “inconvenient” in my opinion, is not on its own a reasonable explanation for non-attendance. More is required. Especially considering the dates and times were within the time period as set out by the applicant in several emails and letters to the respondent.
25As a result, I find that the applicant has not complied with the respondent’s IE requests and has not provided a reasonable explanation for his non-attendance.
Restriction on proceedings
26Section 55(1) 2. of the Schedule states that the insured person shall not apply to the Tribunal if the insurer provided the applicant with notice that it requires an examination under section 44 but the applicant has not complied with that section.
27The respondent submits the applicant has not complied with the Schedule and in accordance with section 55(1) 2. his claim should be dismissed.
28The applicant submits he should be allowed to proceed with the Tribunal application as the applicant has made reasonable efforts to accommodate the respondent’s requests for an IE and the respondent has not accommodated the applicant. Based on the evidence submitted, I do not agree.
29I agree with the respondent; however, I do not agree that the applicant’s claim should be dismissed in its entirety for a non-attendance at an IE. The applicant is entitled to a hearing on its merits should the respondent deny the NEB and the medical benefits after the IE’s have been completed.
30I have already determined that the respondent made several reasonable attempts to accommodate all of the applicant’s requests as discussed above, I therefore find the applicant is precluded from disputing the denied NEB and denied treatment plans at the Tribunal until the applicant attends the IE assessment(s).
ORDER
31For the reasons outlined above, I find that the applicant is barred by virtue of section 55(2) from commencing his Tribunal application to dispute the NEB denial and treatment plans subject to the IE for non-compliance with a section 44 IE request.
32The applicant shall be allowed to apply to the Tribunal for his NEB denial and other medical benefits that are the subject to the IE’s, once the applicant attends the IE assessments.
Released: November 15, 2019
Sandeep Johal
Adjudicator