Licence Appeal Tribunal
Tribunal File Number: 18-006102/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:
C. G.
Applicant
And
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Natalie Shykula-Clarke, Counsel
For the Respondent: Adam Fox, Counsel
HEARD: In writing on February 19, 2019
OVERVIEW
1The applicant was injured in an automobile accident on August 11, 2015 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
2The respondent has raised two preliminary issues in response to the application to the Tribunal which are the subject of this hearing.
ISSUES
3The preliminary issues in dispute are:
Is the applicant precluded by section 55(1)(2) of the Schedule from proceeding with this application to the Tribunal because the applicant failed to attend an insurer’s examination (IE) under section 44?
Can the applicant refuse to attend an IE because of the professional designation of the person conducting the assessment?
RESULT
4The applicant is precluded from proceeding with this application because the applicant failed to attend a properly scheduled insurer’s examination.
5The applicant’s refusal to attend an IE because of a professional designation is not a sufficient reason for missing the examination.
6The application is dismissed.
BACKGROUND
7The applicant was injured in an accident on August 11, 2015 and initiated a claim for accident benefits. The respondent accepted the applicant’s claim and characterized the applicant’s injuries as minor in nature and falling within the Minor Injury Guideline (MIG). The applicant consumed the funding provided by the MIG and then sought further medical benefits which, if funded, would take the applicant beyond the MIG funding limit of $3,500.00.
8In response to the applicant’s request for further medical benefits, the respondent requested the applicant attend an IE to determine whether the applicant’s injuries are within the MIG and whether the medical benefits sought were reasonable and necessary.
9The applicant refused to attend the IE because the professional designation of the assessor is different than the professional designation of the person who completed the treatment plan which proposed medical benefits beyond the MIG. The respondent counters that the applicant cannot refuse to attend an IE on this basis and the applicant is barred from proceeding with this application as a result of this refusal.
10The parties made submissions and provided evidence for the hearing as scheduled. However, the respondent also alleges the applicant has failed to comply with an Order by the Tribunal. I will address the breach of Order first and provide my reasons for decision after.
BREACH OF ORDER
11On consent, the parties to this dispute agreed to proceed by way of written hearing and agreed to page limits on the written submissions. An order was made by the Tribunal to reflect this agreement. The applicant failed to adhere to the page limit by three pages. The respondent has asked me to disregard the last three pages of the applicant’s submissions on account of the applicant’s failure to comply with the order.
12Upon review of the submissions and Order, I will accept the applicant’s submissions in their entirely because the respondent has not been unduly prejudiced by the applicant submitting an additional three pages of submissions. Additionally, the Order states the hearing adjudicator “may not consider submissions which exceed the page limits”. As it is written and by my interpretation, the use of the word “may” implies the hearing adjudicator has a choice on whether to accept the submissions or not.
13The difficulty for the respondent in bringing this motion for technical non-compliance with the Tribunal’s order is that it does not come before me with clean hands. Its own submissions are non-compliant. If I were to take the position that going over the page limit renders the submission inadmissible, I would similarly have to disregard the entirety of the respondent’s submissions as the submissions were not double-spaced as laid out in the Order. Disregarding all of the respondent’s submissions would severely prejudice the respondent and would prevent the Tribunal from carrying out a fair and efficient process.
THE IE DISPUTE
14The respondent submits, pursuant to section 55, the applicant is not entitled to dispute the respondent’s refusal to pay the benefit at the Tribunal because the applicant did not attend a properly scheduled IE.
15The applicant does not dispute the validity of the respondent’s IE notice. Instead, the applicant’s primary position is the IE assessor proposed by the respondent is not appropriate as the assessor is not an occupational therapist like the person who recommended the medical benefits. The applicant’s submits the IEs are not reasonable and necessary, and the applicant is therefore not required to attend them.
16The applicant also argues; the IEs are being conducted for the purpose of bolstering a case for litigation, the respondent is conducting an IE more than reasonably necessary, and there is no reasonable connection between the assessors designated to conduct the examination and the applicant’s injuries.
17IEs are governed by section 44 of the Schedule. It provides the respondent with the right to examine the applicant for the purpose of determining if the applicant is entitled to medical benefits beyond the MIG. The respondent is required to provide proper notice of the IE and may not exercise this right more than is reasonably necessary.
18For the following reasons, I find the applicant has not attended a properly scheduled IE. The applicant is barred from adjudicating this application as a result.
19Section 44(1) expressly provides the respondent with a statutory right to have one or more persons chosen by the insurer who are regulated health professionals to conduct the examination. This was affirmed by the Tribunal in the reconsideration decision NH and Aviva. There the Tribunal found that an insured cannot dictate the identity of those performing an insurer examination. In this case, the person chosen to conduct the examination is a regulated health professional and I find this interpretation applies to the applicant’s case.
20The applicant incorrectly assumes that the IE is only to determine whether the disputed treatment plan is reasonable and necessary. It is not. The purpose of the IE is to determine whether the applicant’s injuries fall within the MIG and if not, whether the treatment plan is reasonable and necessary.
21With this in mind, I find there is a reasonable connection between the applicant’s injuries and the request for a pediatric IE. The applicant is a youth who requested medical and rehabilitation benefits outside the MIG despite the applicant’s injuries have been characterized as falling within the MIG. As a result, the respondent may investigate the applicant’s injuries to determine whether the MIG and the funding limit should continue to apply and whether the proposed treatment plan is reasonable and necessary. In the event the respondent has chosen an unqualified but regulated health professional, the applicant may, as the respondent suggests, challenge the qualifications during the adjudicative process once the examination is conducted.
22To-date, the respondent has been unable to conduct an in-person examination with the applicant. It would be procedurally unfair and contrary to section 55(1)(2) of the Schedule to allow an application in a situation where the applicant has failed to attend a properly scheduled IE. For the same reason, I find the respondent’s request for an IE is not more than reasonably necessary.
23In light of the above, I choose not to exercise the discretion to permit the application to proceed as outlined in section 55(2).
DISMISSAL
24The applicant takes the position that, in the event the applicant is found to be non-compliant with section 55, this application cannot be dismissed because the limitation period on some medical and rehabilitation benefits, as well as costs of examination claims has expired. The respondent submits that, in accordance with the Tribunal’s decision in 16-001652 v Primmum Insurance Company, noncompliance with section 55 disallows an application to the Tribunal and therefore the application should be dismissed. Further, the respondent submits there is no prejudice to the applicant because the recommendations contained in the treatment plan are stale as it has been four years since the disputed treatment plan was denied and because the applicant may remedy the prejudice by submitting another treatment plan, if necessary.
25I agree with the respondent and reject the applicant’s request for the following reasons.
26Section 55 of the Schedule provides circumstances where a person shall not apply to the Tribunal. As I briefly addressed above, section 55(1)(2) specifies that failure to attend a properly scheduled IE is one of those circumstances. I find this applies to the applicant because the applicant has made an application to the Tribunal which is disallowed because the applicant did not attend a properly scheduled IE.
27I find a dismissal of the application does not prejudice the applicant for the following reasons. First, as the respondent submitted, the applicant may submit a new treatment plan should the applicant require further medical and rehabilitation benefits. Second, the position that concerns limitation issues assumes the report from the IE will support the respondent’s initial denial. However that cannot be assumed because it is only one of the possible outcomes of attendance at the IE. Lastly, in the event the respondent maintains the denial of the benefit following the IE, the applicant may apply to the Tribunal to dispute the application of and/or argue for an extension of the limitation period.
COSTS
28The applicant seeks costs for this hearing and submits the respondent’s conduct, the request for an IE, was the cause of this hearing. The respondent submits the applicant has not shown why the respondent’s conduct warrants a cost award.
29Pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure, costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. I find no evidence of such behaviour by either party during the proceeding and dismiss the applicant’s request.
CONCLUSION
30The application is dismissed because the applicant has not attended a properly scheduled section 44 assessment.
31No party is entitled to costs.
Released: May 15, 2019
___________________________
Brian Norris
Adjudicator