Y.Y. v. Aviva General Insurance Company, 2019 CanLII 122733

Citation: Y.Y. vs. Aviva General Insurance Company, 2019 ONLAT 18-009363/AABS

Tribunal File Number: 18-009363/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:

Y.Y.

Applicant

and

Aviva General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION

PANEL:

Lindsay Lake, Adjudicator

APPEARANCES:

For the Appellant:

Philip Kai Kwong Yeung, Paralegal

For the Respondent:

Kevin Griffiths, Counsel

HEARD:

IN WRITING on: May 27, 2019

OVERVIEW

1Y.Y. was injured in an automobile accident on July 7, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”) from Aviva General Insurance Company (“Aviva”), the respondent.

2Y.Y. applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) to determine her entitlement to a weekly income replacement benefit (“IRB”), chiropractic services, a functional abilities evaluation (“FAE”) and a psychological assessment.

3In response to Y.Y.’s application, Aviva raised a preliminary issue. It submitted that pursuant to s. 55(1) of the Schedule, Y.Y. is barred from proceeding with her application because Y.Y. has not attended eight scheduled insurer’s examinations (“IE”) as required under s. 44 of the Schedule.

4Y.Y. admits that she did not attend the IEs but argues that she had reasonable explanations for not doing so, including that:

(i) she did not receive certain notices of IEs;

(ii) the IEs were scheduled too far from her residence;

(iii) the IEs were no longer required due to a withdrawal of a treatment plan;

(iv) Aviva’s notices failed to provide the medical and any other reasons for the IEs; and

(v) Aviva failed to comply with s. 38 of the Schedule.

5A written preliminary hearing was ordered for May 27, 2019 to address the preliminary issue.

PRELIMINARY ISSUE

6The following is the preliminary issue to be decided:

(i) Pursuant to paragraph 2 of s. 55(1) of the Schedule, is Y.Y. barred from proceeding with her application to the Tribunal as follows:

(a) for IRBs for the period from May 26, 2018 to date and ongoing due to her non-attendance at the IEs scheduled for June 1, 2017, June 12, 2017, August 21, 2017, September 19, 2018, September 26, 2018, October 4, 2018 and October 12, 2018 as requested by Aviva under s. 44 of the Schedule?

(b) for chiropractic services recommended by Total Recovery Rehab Clinic in a treatment plan submitted on July 21, 2018 due to her non-attendance at the IE scheduled for October 3, 2018 as requested by Aviva under s. 44 of the Schedule?

(c) for a FAE recommended by Perfect Physio & Rehab Centre in a treatment plan submitted on June 14, 2017 due to her non-attendance at an unscheduled IE?

(d) for a psychological assessment recommended by Somatic Assessments & Treatment Clinic in a treatment plan submitted on August 7, 2018 due to her non-attendance at the IE scheduled for October 12, 2018 as requested by Aviva under s. 44 of the Schedule?

RESULT ON THE PRELIMINARY ISSUE

7I find that:

(i) Y.Y. is non-compliant with s. 44 of the Schedule;

(ii) Y.Y. is statue barred pursuant to s. 55(1)2 of the Schedule from proceeding with her application to the Tribunal for IRBs for the period of May 26, 2018 to date and ongoing due to her non-attendance at the s. 44 IEs scheduled for June 1, 2017, June 12, 2017, August 21, 2017, September 19, 2018, September 26, 2018, October 4, 2018 and October 12, 2018;

(iii) I am not prepared to exercise my discretion under s. 55(2) of the Schedule to allow Y.Y. to apply to the Tribunal regarding her entitlement to the disputed IRBs despite non-compliance with the requirements of s. 55(1)2. As a result, Y.Y.’s application for IRBs is dismissed; and

(iv) Y.Y. is able to proceed with her application to the Tribunal to determine her entitlement to chiropractic services, a FAE and a psychological assessment.

ANALYSIS

8Under s. 44(1) of the Schedule, an insurer has the right to require an insured person to attend IEs to be examined by a regulated health professional of its choice to determine initial, or continuing, entitlement to benefits.

9Section 44(9)2.iii of the Schedule requires an insured person to attend the IE and submit to all reasonable examinations requested by those conducting the IE.

10Section 55(1)2 of the Schedule prohibits an insured person from applying to the Tribunal under s. 280(2) of the Insurance Act¹ if they have not complied with an insurer’s request for an IE under s. 44 of the Schedule.

11Y.Y. does not dispute that she did not attend any of the scheduled s. 44 IEs. As a result, I find that she is in breach of her obligations under s. 44 of the Schedule. Y.Y., however, submits that she was not required to attend the IEs for various reasons and, therefore, she is not barred by s. 55(1)2 of the Schedule from commencing her application to the Tribunal. In the alternative, Y.Y. requests that her application be stayed pursuant to s. 55(2) of the Schedule until such time she attends the s. 44 IEs.

Y.Y.’s Application for IRBs

12I find that Y.Y. has failed to prove on a balance of probabilities that she had a reasonable explanation for her non-attendance at the IEs scheduled for June 1, 2017, June 12, 2017, August 21, 2017, September 19, 2018, September 26, 2018, October 4, 2018 and October 12, 2018 and, therefore, she is barred by s. 55(1)2 of the Schedule from proceeding with her application to the Tribunal for determination of her IRB entitlement.

13I am not prepared to exercise my discretion under s. 55(2) of the Schedule to allow Y.Y. to apply to the Tribunal regarding her entitlement to the disputed IRBs despite failing to comply with the requirements of s. 55(1)2.

Aviva’s Notices for the June and August 2017 IEs for Entitlement to IRBs

14Y.Y. submitted an Employer’s Confirmation Form (OCF-2) and a Disability Certificate (OCF-3), both dated March 21, 2017, to Aviva seeking payment of IRBs. Both forms indicated Y.Y.’s address as being in Barrie, Ontario.

15On March 22, 2017, Y.Y. advised Aviva, through her representative, that she moved to Barrie, Ontario to the same address that was on the March 21, 2017 OCF-2 and OCF-3.

16On May 5, 2017, Aviva sent correspondence to Y.Y. at her Barrie, Ontario address notifying her that her attendance was required at the following two IEs to assist in determining her entitlement to IRBs:

(i) A general practitioner assessment scheduled for June 1, 2017, with Dr. Hashmat Khan, general practitioner, in Mississauga, Ontario, with an interpreter and transportation services provided; and

(ii) A psychology assessment scheduled for June 12, 2017, with Dr. Fabio Salerno, psychologist, in Barrie, Ontario, with an interpreter and transportation services provided.

17On July 10, 2017, Aviva wrote to Y.Y. at her Barrie, Ontario address following her failure to attend both the June 1, 2017 and June 12, 2017 IEs. Aviva noted that as a result of her non-attendance, it was unable to determine her entitlement to IRBs and Y.Y.’s “eligibility has been suspended as of July 10, 2017.” Aviva also provided notice of rescheduled IEs to determine Y.Y.’s entitlement to IRBs as follows:

(i) A general practitioner assessment scheduled for August 9, 2017, with Dr. Pravesh Jungnundan, general practitioner, in Aurora, Ontario, with an interpreter and transportation services provided; and

(ii) A psychology assessment scheduled for August 21, 2017, with Dr. Fabio Salerno, psychologist, in Barrie, Ontario, with an interpreter and transportation services provided.

18On July 25, 2017, Y.Y.’s representative wrote to Aviva confirming that Y.Y. would attend at the scheduled August 21, 2017 IE psychology assessment and requested transportation and a Mandarin interpreter. At this time, Aviva was also provided with notice, which it concedes, that Y.Y was not able to attend the August 9, 2017 general practitioner assessment because “it is too much for her to take care of a baby while she has to travel so far.” A request was made that the IE be rescheduled and arranged near Y.Y.’s residence. Despite the July 25, 2017 correspondence, Y.Y. failed to attend the August 21, 2017 IE with no explanation or advance notice.

19Y.Y. submits that she is not barred from proceeding with her application to the Tribunal for a determination on her entitlement to IRBs because of the following reasonable explanations for failing to attend the June 1, 2017, June 12, 2017 and August 21, 2017 IEs:

(i) She did not receive notice of the June 1, 2017 and June 12, 2017 IEs;

(ii) The August 9, 2017 and August 21, 2017 IEs were scheduled too far from Y.Y.’s residence as she had a new baby and was not able to travel far;

(iii) Aviva failed to state the medical and any other reasons for the examinations; and/or

(iv) Aviva failed to comply with s. 38(8) and s. 39(9) of the Schedule.

Non-Receipt of IE Notices

20Y.Y. submitted that she did not receive the notice for the June 1, 2017 and June 12, 2017 IEs and, therefore, she did not attend the IEs set out therein.

21To support her position, Y.Y. submitted that Aviva continued to write to her at her former address and provided correspondence dated April 17, 2017 that Y.Y. claimed was sent to her “at the incorrect address.”² Y.Y. submitted two letters from Aviva dated April 17, 2017 as evidence: one was addressed to Dr. Bryan Fong and the other to Dr. Carol Tuen-Mau Peng. I do not find that these letters assist Y.Y.’s position. Both letters were copied to Y.Y. at the Barrie, Ontario address provided to Aviva by Y.Y.’s representative on March 22, 2017. Furthermore, these letters did not set out any notices of IEs.

22I find that Y.Y. failed to submit any evidence to support her argument that she was not provided notice of the June 1, 2017 and June 12, 2017 IEs. Y.Y. only provided unsupported statements in her submissions, which are not evidence. The two letters dated April 17, 2017 contradict or, at best, fail to support her position. Therefore, Y.Y. is unable to rely upon this unsubstantiated explanation as a reason for her non-attendance at the June 1, 2017 and June 12, 2017 IEs.

Location of IEs

23Section 44(9)2.i. of the Schedule requires an insurer to make reasonable efforts to schedule the IE at a location that is convenient for the insured person.

24Y.Y. argues that she was not required to attend the August 9, 2017³ and August 21, 2017 IEs because they were scheduled too far from her residence. She also submits that she had a new baby and was not able to travel far.

25The August 21, 2017 IE psychology assessment was scheduled in Barrie, Ontario, the municipality in which Y.Y. resided. No evidence was submitted about the distance or time it would take to travel to the assessment location from Y.Y.’s residence. The July 25, 2017 letter to Aviva from Y.Y.’s representative confirmed that Y.Y. would attend the August 21, 2017 IE. Furthermore, the objection to the IE locations in the July 25, 2017 letter only referred to the August 9, 2017 IE scheduled in Aurora, Ontario. At no time did Y.Y. raise any objections to the location of the August 21, 2017 IE or any of the other IEs scheduled in Barrie, Ontario.

26I find that Y.Y. failed to object to the location of the August 21, 2017 IE and to the other IEs scheduled in Barrie, Ontario to allow Aviva an opportunity to accommodate her. Furthermore, Y.Y. failed to submit any evidence to support her inability to travel the required distances and I note that all of the notices of IEs included transportation to the assessment locations. Therefore, I find that Y.Y. is not able to rely upon s. 44(9)2.i. of the Schedule as a reasonable explanation for not attending the IEs.

Medical and Any Other Reasons for the Examinations

27Section 44(5)(a) of the Schedule requires IE notices to set out the medical and any other reasons for the examinations.

28Y.Y. very broadly argued that the IE notices failed to comply with s. 44(5)(a) of the Schedule and failed to set out any details to support her position. Y.Y. only included citations from decisions of the Financial Services Commission of Ontario (‘FSCO”) in her submissions and a general statement that the notices “do not come close” to the details required in those decisions.

29Aviva argues that the notices all contained medical reasons for the requested IEs.

30In determining whether or not the IE notices complied with s. 44(5)(a) of the Schedule, I am guided by the requirements set out by Executive Chair Lamoureux in the reconsideration decision of M.B. v. Aviva Insurance Canada.⁴ The insurer’s “medical and any other reasons” should include:

(i) specific details about the insured’s condition forming the basis for the insurer’s decision or information that the insurer needs but does not have about the insured’s condition;

(ii) the specific benefit or determination at issue; and

(iii) the sections of the Schedule being relied upon.⁵

31I find that the May 5, 2017 notice for the June 1, 2017 and June 12, 2017 IEs is deficient, as it does not reference any section of the Schedule. I also find the July 10, 2017 notice for the August 9, 2017 and August 21, 2017 IEs is deficient for the same reason.

32Nonetheless, I am also guided by Executive Chair Lamoureux’s findings in M.B. v. Aviva that, “ultimately, an insurer’s ‘medical and any other reasons’ should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.”⁶ Y.Y. did not identify the failure to cite specific sections of the Schedule as being at issue for her. I am also mindful of the Tribunal’s statement in 17-002921 v Aviva Insurance Canada⁷ that:

Alleged deficiencies or omissions in notices should not be accepted as excuses for an insured’s own complete inaction or non-compliance without evidence that he was actually misled or confused by the documents or was unable to understand them.⁸

33In this matter, there is overwhelming evidence that English is not Y.Y.’s first language and that she requires the assistance of a Mandarin interpreter. Nonetheless, I have not been provided with any evidence that Y.Y. was misled or confused by the notices or was unable to understand them with interpretation assistance.

34For all of these reasons, I find that the May 5, 2017 and July 10, 2017 notices complied with s. 44(5)(a) as they were clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the IEs even without referring to the specific section of the Schedule. The failure to cite a specific section of the Schedule is a minor deficiency and the notices contained the adjuster’s contact information for any questions that Y.Y. or her representative may have had. There is no evidence that Y.Y. was confused by the minor deficiency and, in any event, this minor deficiency does not absolve Y.Y. or her representative from inaction or non-compliance.

Section 38 of the Schedule

35Y.Y. argues that she is not required to attend IEs for entitlement to IRBs as Aviva failed to comply with s. 38 of the Schedule.

36Section 38(1) applies to medical and rehabilitation benefits other than benefits payable in accordance with the Minor Injury Guideline and all applications for approval of assessments or examinations. I find that s. 38 does not apply to the IE notices for determining Y.Y.’s entitlement to IRBs. Therefore, Y.Y. is not entitled to reply upon any alleged breach of s. 38 as a reasonable explanation for her non-attendance at the June 1, 2017, June 12, 2017 and August 21, 2017 IEs.

Aviva’s Notices for the September and October 2018 IEs for Entitlement to IRBs

37Following receipt of an OCF-3, Aviva wrote to Y.Y. on August 21, 2018 explaining that it was unable to determine, “whether the recommendations made on your updated Disability Certificate meet the disability requirement for the specified benefit you are claiming.” The medical reasons listed were, “the disability period appears to be inconsistent with the diagnosis or mechanism of injury,” and, therefore, Aviva gave notice of Y.Y.’s required attendance at five IEs as follows:

Date

Type of Exam

Examiner

Designation

Location

Interpreter and Transportation Provided?

Duration of Exam

Sept. 19/18

Vocational assessment

Ms. Sandra Cauchard

vocational rehab specialist

Barrie, Ontario

Yes

6 hours

Sept. 19/18

Transferable Skills Analysis

Ms. Sandra Cauchard

vocational rehab specialist

Barrie, Ontario

Yes

6 hours⁹

Sept. 26/18

Functional Abilities Evaluation

Mr. Robert Bullard

kinesiologist

Barrie, Ontario

Yes

4 hours

Oct. 4/18

Orthopaedic Surgery Assessment

Dr. James Delaney

orthopaedic surgeon

Barrie, Ontario

Yes

1 hour

Oct. 12/18

Psychology Assessment

Dr. Catharine Notarfonzo

psychologist

Barrie, Ontario

Yes

4 hours

38Aviva gave notice on September 6, 2018, of a change in date from October 4, 2018, to October 3, 2018 for the orthopaedic assessment with Dr. Delaney. This correspondence was sent to Y.Y.’s Barrie, Ontario address.

39On September 12, 2018, Y.Y.’s representative wrote to Aviva acknowledging receipt of the notice of the IEs but claimed they were “unreasonable and excessive” and requested that they be cancelled “after the treatment plan submitted by Total Recovery has been withdrawn.”

40In response, Aviva wrote to Y.Y.’s representative on September 14, 2018, and confirmed that the scheduled IEs would not be cancelled and that they were required to assess Y.Y.’s entitlement to IRBs post-104 weeks of the accident. Aviva’s position was that multiple IEs were required for this purpose. Aviva also copied Y.Y. on this correspondence listing her Barrie, Ontario address.

41Y.Y. also failed to attend the IEs set out in paragraph [37] above.

42Y.Y. submits that she is not barred from proceeding with her application to the Tribunal for a determination of her entitlement to IRBs following her non-attendance at the September and October 2018 IEs because:

(i) A treatment plan was withdrawn, so the IEs were no longer required;

(ii) Aviva failed to state the medical and any other reasons for the examinations; and/or

(iii) Aviva failed to comply with s. 38(8) and s. 39(9) of the Schedule.

Withdrawal of Treatment Plan

43Y.Y. submits “further Insurance Examinations were scheduled and the Applicant informed the Respondent that the treatment plan was withdrawn and so therefore the Insurance Examinations were not required.”¹⁰

44Y.Y. appears to be referring to her representative’s correspondence to Aviva dated September 12, 2018, in which a request was made to cancel the IEs set out in paragraph [37] above because “the treatment plan submitted by Total Recovery has been withdrawn.”

45No further details were provided as to which treatment plan Y.Y. was referring to. Furthermore, the IEs set out in paragraph [37] above were originally scheduled in response to Y.Y.’s submission of an OCF-3 and not in response to a treatment plan. As a result, Y.Y. was not excused from attending the September 19, 2018, September 26, 2018, October 4 (changed to 3rd), 2018 and October 12, 2018 IEs for this reason.

Medical and Any Other Reasons for the Examinations

46I find that both the August 21, 2018 and the September 6, 2018 IE notices do not meet the requirements set out in M.B. v. Aviva because they fail to reference the specific benefit (IRBs) at issue. Moreover, the notices only state that Aviva is unable to determine whether the recommendations made in Y.Y.’s updated Disability Certificate meet the disability requirement for the specified benefit she was claiming. These notices are not clear that the purpose of the IEs is to assist Aviva in determining Y.Y.’s entitlement to IRBs.

47In response to these two notices, Y.Y.’s representative wrote to Aviva on September 12, 2018 seeking clarification. In reply, Aviva informed Y.Y. that the IEs were for post-104 week entitlement to IRBs as explained in its September 14, 2018 letter. Furthermore, Aviva referenced s. 6(2)(b) of the Schedule outlining the test for IRB eligibility beyond 104 weeks post-accident and explained that multiple IEs were required to make such a determination.

48Although Aviva did not clarify how its September 14, 2018 letter was delivered to Y.Y., Y.Y. made no responding submissions that she did not receive this letter or that it was not received prior to the scheduled IEs. In fact, Y.Y. made no submissions about the September 14, 2018 correspondence from Aviva.

49Based on the reasons set out above, I am satisfied that the August 21, 2018 and the September 6, 2018 IRB IE notices combined with Aviva’s letter dated September 14, 2018 set out the medical and any other reasons for the IEs as required by s. 44(5)(a) of the Schedule. Therefore, Y.Y. was not excused from attending the IEs for this reason.

Section 38 of the Schedule

50Y.Y. argues that she is not required to attend IEs as Aviva failed to comply with s. 38 of the Schedule.

51As explained above, I find that s. 38(1) of the Schedule does not apply as the notices were for IEs to determine Y.Y.’s entitlement to IRBs. As a result, Y.Y. is not entitled to reply upon any alleged breach of s. 38 for as a reasonable explanation for her non-attendance at the September and October 2018 IEs.

Relief from the Restriction on Proceedings under s. 55 of the Schedule

52Y.Y. requested that, in the event that I find she was required to attend the IEs, that the proceedings be stayed under s. 55(2) of the Schedule in order to allow her to attend the IEs.

53Section 55(2) permits the Tribunal to allow an insured person to apply to the Tribunal despite being statute-barred under s. 55(1)2 for failure to attend an IE. The only additional reason aside from those discussed above provided by Y.Y. for failing to attend the IEs is because she “just had a new baby and was not able to travel that far.”¹¹ No further details, such as the age of Y.Y.’s baby, were provided.

54I am not prepared to exercise my discretion under s. 55(2) of the Schedule to allow Y.Y. to proceed with her application to the Tribunal for IRBs. None of the above-referenced reasons provided by Y.Y., or her argument about having a baby without any further details, satisfies me that Y.Y.’s application for IRBs should be allowed to proceed despite her non-attendance at the IEs. Y.Y. failed to make any further submissions to support her request that I exercise my discretion under s. 55(2). As a result, Y.Y.’s application for IRBs is dismissed.

Y.Y.’s Application for Chiropractic Services

55I find that Y.Y. is not precluded from proceeding with her application to the Tribunal for determination of her entitlement to chiropractic services pursuant to s. 55(1) of the Schedule because Aviva failed to set out the medical and other reasons for the IEs in its notice.

56On September 6, 2018, Aviva wrote to Y.Y. at her Barrie, Ontario address acknowledging receipt of a treatment and assessment plan (OCF-18) dated July 21, 2018 for chiropractic services by Total Recovery Rehab Centre. In this correspondence, Aviva notified Y.Y. that it was unable to determine whether the recommendations on the OCF-18 were reasonable and necessary for the injuries that she sustained and, as a result, informed Y.Y. that she was required to attend a s. 44 IE orthopaedic surgery assessment on October 3, 2018 with Dr. James Delaney, orthopaedic surgeon, in Barrie, Ontario. Transportation and interpretation services were to be provided. The medical reasons set out by Aviva for the IE were as follows:

There appears to have been late reporting of the accident and/or commencement of medical care; the type(s) of treatment does not appear consistent with the patient’s diagnosis; the frequency of care does not generally diminish over time; treatment appears to focus on passive care without an active rehabilitative phase; diagnostic studies appear to be ordered or repeated without objective clinical documentation for their necessity; multiple providers, specialists, consultations, or referrals occur without an apparent documented explanation in the clinical records of the medical necessity; the patient’s subjective physical complaints appear to remain unchanged despite continuing treatment.

57I will address in turn Y.Y.’s position that she is not barred from proceeding with her application to the Tribunal for a determination on her entitlement to chiropractic services despite non-attendance at the October 3, 2018 IE on the basis that:

(i) Aviva failed to state the medical and any other reasons for the examination; and/or

(ii) Aviva failed to comply with s. 38(8) and s. 39(9) of the Schedule.

Medical and Any Other Reasons for the Examinations

58I find that Aviva’s notice for the October 3, 2018 IE in response to Y.Y.’s claim for chiropractic services failed to set out the medical and any other reasons for the IE and also failed to meet the requirements set out in M.B. v. Aviva for the following reasons:

(i) The notice for the October 3, 2018 IE to determine Y.Y.’s entitlement to chiropractic services was scheduled at the same time and for the same duration of time (1 hour) as her IE with Dr. Delaney for an IE to determine Y.Y.’s entitlement to IRBs. There is no reason or explanation provided if Dr. Delaney’s IE would address Y.Y.’s entitlement to both IRBs and chiropractic services; and

(ii) although the notice refers to the specific benefits at issue and the sections of the Schedule that Aviva was relying upon, the “medical reasons” in this notice are nothing more than a series of generic phrases that fail to include any specific details about Y.Y.’s condition forming the basis for Aviva’s decision or the specific information that Aviva does not have but needs about Y.Y.’s condition. These statements are also not clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

59Furthermore, while I relied upon the Tribunal’s decision in 17-002921 above, I am not prepared to do so regarding this notice. The deficiencies in this notice are far more significant than a minor defect. In my opinion, this notice was so deficient that a request for clarification would not achieve the clarity required to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

60Based on the reasons set out above, I find that Y.Y. is not statue barred pursuant to s. 55(1)2 of the Schedule from proceeding with her application to the Tribunal for a determination of her entitlement to chiropractic services as a result of her failure to attend the October 3, 2018 IE with Dr. Delaney.

Y.Y.’s Application for a Functional Abilities Evaluation

61I find that Y.Y. is able to proceed with her application to the Tribunal to determine her entitlement to a FAE because no s. 44 IE was scheduled by Aviva for the purpose of assessing her entitlement to a FAE. Therefore, Y.Y. did not fail to attend any scheduled IE for the purposes of determining this issue in dispute.

62On June 30, 2017, Aviva wrote to Y.Y. at her Barrie, Ontario address to advise her that the proposed treatment plan for a FAE was denied. Aviva advised that it was not agreeing to fund the goods and services proposed in the OCF-18 at this time because, “we are unable to determine the status of injuries due to non-compliance in attending previously arrange[d] Insurers Examinations.” Aviva also requested available dates to reschedule the IEs that Y.Y. failed to attend.

63Aviva concedes that it denied this OCF-18 after Y.Y. failed to attend IEs scheduled to address Y.Y.’s entitlement to IRBs. As a result of Y.Y.’s non-attendance at the IEs, Aviva incurred no-show fees and argued that, “given that the applicant had just failed to attend two IEs, Aviva submits that it was reasonable to ask that the applicant confirm her availability to attend an IE before it scheduled a further IE and risked additional no-show fees.”

64I disagree with Aviva’s position as it is not supported in either case law or the Schedule and find that Aviva failed to provide Y.Y. with notice that it required an examination under s. 44 of the Schedule to address the benefits sought in this OCF-18. As a result, I find that Y.Y. has not failed to attend a s. 44 IE in relation to her claim for a FAE and is not statute barred from proceeding with her claim to the Tribunal for a determination on this issue in dispute.

Y.Y.’s Application for Psychological Assessment

65I find that Y.Y. is not precluded from proceeding with her application to the Tribunal for determination of her entitlement to a psychological assessment pursuant to s. 55(1)2 of the Schedule because Aviva failed to set out the medical and other reasons for the IE in its notice.

66On August 21, 2018, Aviva wrote to Y.Y. at her Barrie, Ontario address following receipt of an OCF-18 dated August 7, 2018 that sought funding for a psychological assessment. Aviva stated that it was unable to determine whether the recommendations were reasonable and necessary for the injuries that Y.Y. sustained and provided notice that Y.Y. was required to attend a s. 44 IE psychology assessment with Dr. Catharine Notarfonzo, psychologist, on October 12, 2018 with transportation and interpretation services provided. The medical reasons set out by Aviva in its correspondence are the exact same list as those set out in its September 6, 2018 correspondence to Y.Y. discussed above.

67Aviva submitted that because Y.Y. was already scheduled to be examined by Dr. Notarfonzo at the same time to address Y.Y.’s entitlement to IRBs, that “essentially Aviva gave notice that the same IE would also address the disputed treatment plan.”¹² I disagree. There is no language in the August 21, 2018 notice to suggest that this information was conveyed to Y.Y. Furthermore, while Y.Y. made no specific submissions regarding her reasonable explanation for not attending the October 12, 2018 IE with Dr. Notarfonzo, I find that Aviva’s notice for the October 12, 2018 IE in response to Y.Y.’s claim for a psychological assessment failed to set out the medical and any other reasons for the IE and also failed to meet the requirements set out in M.B. v. Aviva for the same reasons as set out in paragraphs [58] and [59] above.

68As a result, Y.Y. is not statue barred by s. 55(1)2 of the Schedule from proceeding with her application to the Tribunal for a determination of her entitlement to a psychological assessment as a result of her failure to attend the October 12, 2018 IE with Dr. Natarfonzo.

CONCLUSION

69Based on my reasons set out above, I find that:

(i) Y.Y. is non-compliance with s. 44 of the Schedule for failing to attend the IEs scheduled for June 1, 2017, June 12, 2017, August 21, 2017, September 19, 2018, September 26, 2018, October 4, 2018 and October 12, 2018 intended to assess her entitlement to IRBs;

(ii) Y.Y. is statue barred pursuant to s. 55(1)2 of the Schedule from proceeding with her application to the Tribunal for IRBs for the period of May 26, 2018 to date and ongoing due to her non-attendance at the s. 44 IEs scheduled for June 1, 2017, June 12, 2017, August 21, 2017, September 19, 2018, September 26, 2018, October 4, 2018 and October 12, 2018;

(iii) I am not prepared to exercise my discretion under s. 55(2) of the Schedule to allow Y.Y. to apply to the Tribunal regarding her entitlement to the disputed IRBs despite her non-compliance with the requirements of s. 55(1)2. As a result, Y.Y.’s application for IRBs is dismissed;

(iv) Y.Y. is able to proceed with her application to the Tribunal to determine her entitlement to chiropractic services and for a psychological assessment as Aviva failed to set out the medical and other reasons for the IEs in its notices, which were also not clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue; and

(v) Y.Y. is able to proceed with her application to the Tribunal to determine her entitlement to a FAE because no s. 44 IE was scheduled to assess her entitlement to the FAE. Therefore, Y.Y. did not fail to attend an IE and the restriction on proceedings as set out in s. 55(1)2 of the Schedule do not apply to this treatment plan.

OTHER PROCEDURAL ISSUES

70As part of her submissions, Y.Y. discusses an award under s. 10 of Ontario Regulation 664. The issue of whether or not Y.Y is entitled to an award is not properly before me as a preliminary issue. Further, this issue is not listed as one in dispute between the parties on the Tribunal’s March 28, 2019 Order and there was no request to add it as a substantive issue in dispute between the parties. As such, I decline to address an award at this time.

71Pursuant to the next steps following the decision on the preliminary issue as set out in the Tribunal’s March 28, 2019 Order, I order that within 30 days of the release of this preliminary hearing decision, the parties shall contact the Tribunal to confirm whether the matter is proceeding and if so, to schedule a resumption of the case conference that will determine the remaining substantive issues in dispute and schedule the hearing.

Released: November 6, 2019

___________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1R.S.O. 1990, c. I.8.
2. 2Response Submissions of the Applicant, para. 6.
3. 3Aviva is not relying upon Y.Y.’s failure to attend the August 9, 2017 IE general practitioner assessment as it concedes that Y.Y. provided notice that she could not attend. As such, the August 9, 2017 IE does not form part of my decision.
4. 42017 CanLII 87160 (ON LAT) (“M.B. v. Aviva”).
5. 5Ibid. at para. 26.
6. 6Ibid.
7. 72018 CanLII 76416 (ON LAT) (“17-002921”).
8. 8Ibid. at para. 22.
9. 9The duration of this assessment was listed separately and in addition to the 6-hour duration of the vocational assessment.
10. 10Response Submissions of the Applicant, para. 13.
11. 11Preliminary Issue Submissions of the Applicant, para. 9.
12. 12Preliminary Issue Submissions of Aviva, para. 15.