A.R. v. Certas Direct Insurance Company, 2019 CanLII 51304

Licence Appeal Tribunal

Tribunal File Number: 18-005035/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:

A.R. Applicant

and

Certas Direct Insurance Company Respondent

DECISION AND ORDER

PANEL: Sandeep Johal, Adjudicator

APPEARANCES:

For the Applicant: William Braverman, Counsel

For the Respondent: Rupinder Kaur Tatla, Counsel

HEARD In Writing on: December 17, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in an automobile accident on August 7, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was riding his motorcycle in an area of Brock Road in Durham Region which had no lighting as a result of construction in that area. According to the applicant, there were no construction zone warning signs or signals in advance before reaching the construction zone, and with no street lights the applicant struck a sign which caused a collision knocking the applicant off his motorcycle and resulting in his injuries.

3The applicant applied for income replacement benefits (“IRB”) which was 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”).

4At the case conference on October 11, 2018 the respondent raised a preliminary issue that the applicant is barred from proceeding with the Tribunal application for IRB’s as a result of his non-attendance of a section 44 IE examination.

PRELIMINARY ISSUE TO BE DECIDED

5The following is the preliminary issue to be decided as set out in the case conference order dated October 11, 2018:

i. Is the applicant precluded from applying to the Tribunal in accordance with section 55(2) of the Schedule with respect to the income replacement benefit as he did not comply with the respondent’s request for him to attend a section 44 insurer examination?

RESULT

6Based 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 IRB denial for 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

7The applicant has a duty to participate in IE assessments that are reasonably necessary and there must be a reasonable explanation provided for non-attendance. However, the reasonable explanation for not attending on a certain date does not waive the applicant’s duty to be accommodative and to make attempts to attend at a later date.

8Section 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 or who have expertise in vocational rehabilitation.

9Section 44(4) of the Schedule states an examination under this section may be limited by the respondent to an examination of material…without requiring the attendance of the applicant.

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 submits that the day before the scheduled IE assessment, applicant’s counsel wrote to the respondent with a medical note from the applicant’s doctor, Dr. P., that the applicant would not be able to attend the IE assessment on June 1, 2016. The respondent then rescheduled the IE assessment to June 15, 2016.²

12On June 15, 2016 applicant’s counsel wrote to the respondent to advise that the applicant would also not attend the rescheduled IE assessment as he is attempting to make an appointment to see Dr. P. to examine him with respect to his ongoing impairments and limitations.

13The applicant submits he did not attend as a result of the medical note from Dr. P. dated May 31, 2016 which according to the applicant, directed and instructed him to remain at home to rest and drink fluids. As a result, the applicant submits that the Tribunal should exercise its discretion in accordance with section 55(2) and permit the applicant to apply to dispute his IRB denial even though he has not complied with the notice by the insurer requiring his attendance at an IE assessment.

14I find that the applicant had a reasonable explanation for not attending the IE assessment scheduled for June 1, 2016, however, I am not persuaded that this would be the appropriate situation in which to exercise my discretion under section 55(2) to allow this application to proceed at the Tribunal for the following reasons.

15The letter from Dr. P dated May 31, 2016 states the applicant “was in my office today with flu like symptoms. He is instructed to rest for the next several day(s) (sic).” In my opinion, this would be a reasonable explanation to miss the scheduled IE for the next day, however I am not presented with any submissions or evidence on why the applicant was unable to attend at a later date. The letter from Dr. P. does not state that the applicant may be ill for an extended period of time or that his illness may prevent him from attending any IE assessment.

16The respondent wrote to the applicant on June 15, 2016 providing the applicant an opportunity to reschedule the assessment.³ According to the respondent, the applicant did not respond and made no subsequent attempt to reschedule the IE assessment. The respondent submits that this is non-compliance with a section 44 IE request and as a result the respondent was within its right under the Schedule to deny the IRB.

17I agree with the respondent, once the medical note was provided by the applicant, the respondent then rescheduled the IE assessment however the applicant still did not attend, relying on the original note from Dr. P of May 31, 2016 which stated the applicant should rest for several days. After the passing of several days there was no reasonable explanation for the applicant’s non-attendance. As a result, I find that the applicant is precluded from disputing his IRB denial until he attends the IE assessments.

ORDER

18For 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 IRB denial for non-compliance with a section 44 IE request.

19The applicant shall be allowed to apply to the Tribunal for his IRB denial once the applicant attends the IE assessments.

Footnotes

1. 1O. Reg. 34/10.
2. 2Exhibit “P” of the Affidavit of [R.B.] sworn November 12, 2018.
3. 3Exhibit “Q” of the Affidavit of [R.B.] sworn November 12, 2018