Citation: Campbell v. TD Insurance Meloche Monnex, 2021 ONLAT 19-010577/AABS

Release date: 04/13/2021

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:

Nadine Campbell

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

ADJUDICATOR:

Susan Mather, Vice Chair

APPEARANCES:

For the Applicant:

Linda To, Paralegal

For the Respondent:

Ken Yip, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The 48-year-old applicant was involved in an automobile accident on December 15, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain medical and rehabilitation benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent (“TD”) refuses to pay for the treatment and assessments proposed in the disputed treatment plans on basis that Minor Injury Guideline applies to the applicant.¹ The Guideline limits the amount of money available for the treatment of predominantly minor injuries to $3500.

3In the alternative TD submits that it is not required to pay any benefits to the applicant until she complies with TD’s request for her to provide the clinical notes and records (“CNRs”) of Dr. Chiang.²

4In a further alternative, TD submits that the applicant is barred from having her application heard, because she failed to comply with TD’s request for her to attend Insurer’s Examinations (IE’s) to allow TD to determine if the Guideline applies and the applicant’s entitlement to Income Replacement benefits.³

ISSUES

5The issues to be decided at this hearing are:

1. Is the applicant barred from commencing this application to the Tribunal on the basis that she failed to comply with the requirement of s. 44 of the Schedule that she attend an IE and submit to all reasonable physical, psychological, mental and functional examinations required by the examiner?

If the applicant is not barred from commencing this application,

2. Are the applicant's injuries predominately minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500 limit in the Guideline?

3. Is the applicant entitled to a medical benefit in the amount of $1,299.74 for goods and services recommended in a Treatment and Assessment Plan (“treatment plan”) by Complete Rehab Centre submitted December 21, 2017 denied by the respondent January 2, 2018?

4. Is the applicant entitled to a medical benefit in the amount of $1,816.74 for goods and services recommended in a treatment plan by Complete Rehab Centre dated August 28, 2018 denied by the respondent October 31, 2018?

5. Is the applicant entitled to $2,680.00 for the cost of a chronic pain Assessment recommended in a treatment plan by Complete Rehab Centre, denied by the respondent November 27, 2018?

6. Is the applicant entitled to $2,460.00 for the cost of a psychological assessment, recommended in a treatment plan by Complete Rehab Centre denied by the respondent May 16, 2018?

7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6The application is dismissed. The applicant is barred from bringing this application to the Tribunal because she did not submit to all reasonable psychological examinations requested by the IE examiner.

PRELIMINARY ISSUE – S. 55(1) paragraph 2 of the Schedule

7TD submits that the applicant is barred from bringing this application to the Tribunal because she failed to attend a psychological assessment required by TD to determine if the Guideline applies to the injuries the applicant sustained in the accident. In my view, this is a preliminary issue. If the application is not properly before the Tribunal, I do not have the jurisdiction to determine if the Guideline applies, and whether the disputed benefits are reasonable and necessary.

8Paragraph two of s. 55(1) of the Schedule provides that an insured person shall not commence a proceeding before the Tribunal if the insurer has provided the insured person with a notice in accordance with the Schedule that it requires an examination under s. 44 of the Schedule, but the insured person has not complied with that section. S. 55(2) of the Schedule gives the Tribunal the discretion to permit an insured person to apply to the Tribunal despite the restriction imposed in s. 55(1).

9For the reasons provided below I find that the applicant has not complied with the requirements of s.44 of the Schedule and is barred from proceeding with this application. I will not exercise my discretion and permit her application to proceed because in my view, a psychological assessment was reasonably necessary in order to assist TD in determining if the applicant sustained more than predominantly minor injuries in the accident. The applicant relies on both psychological impairments and chronic pain as reasons the Guideline does not apply to the injuries she sustained in the accident.

FACTS

10The applicant submitted a treatment and assessment plan to TD dated December 18, 2017.⁴ The treatment plan proposes chiropractic and massage therapy. Dr. Jessa, the chiropractor who proposed the plan indicates under “Additional Comments” that the applicant was experiencing sleep problems, appetite problems, irritability and a depressed mood. He also commented that the “applicant is advised a psychological assessment” (sic).

11TD gave a notice to the applicant that it required further medical opinion to determine if the treatment plan was reasonable and necessary for the injuries she sustained in the accident and to determine if the injuries sustained in the accident fall within the Guideline.⁵

12The notice also advised the applicant that it would require an assessment to determine if the proposed goods and services were reasonable and necessary and if the Guideline applies to the applicant’s injuries.

13TD arranged for a physiatry and psychological assessment and by letter dated January 10, 2018 gave the insured a notice for both assessments that meets the requirements of the schedule because it sets out:⁶

(a) The medical and all other reasons for the examination;

(b) That the attendance of the applicant was required at the examination;

(c) That Dr. Konstantine Zakzanis, Ph.D. C. Psych, would conduct the psychological examination; and

(d) The day, time and location of the examination.⁷

14The applicant attended at and completed the physiatry IE. She attended the psychology IE but did not complete the assessment. According to a letter from TD to the applicant, the applicant did not complete the assessment due to fatigue. The assessment was rescheduled for a later date.⁸

15The applicant subsequently failed on two occasions to attend an IE scheduled for a functional capacity assessment in connection with her application for an Income Replacement Benefit.⁹ Following her second no-show for the functional capacity assessment, TD advised the applicant that it would not schedule either the psychology assessment or the functional capacity assessment until such time as the applicant agreed, going forward, to pay the fees for no shows or late cancellations incurred on the file.¹⁰

ANALYSIS

16The Schedule provides a mechanism for insured persons to apply for medical, rehabilitation and other benefits following a motor vehicle accident. It requires insurers to respond in a timely fashion to insured persons’ claims for benefits and is designed to prevent insurers from arbitrarily denying benefit claims.

17Upon receipt of a treatment and assessment plan, the Schedule allows an insurer to require an insured person to be examined by one or more persons who are regulated health professionals or have expertise in vocational rehabilitation.

18In this case TD believed the Guideline applied to the applicant’s injuries.¹¹ TD also required a medical opinion to assist it in determining if the treatment plans for chiropractic and massage therapy were reasonable and necessary.¹²

19TD’s request for a psychological examination was reasonably necessary to assist TD in determining if the Guideline applies. This is because applicant submits that she suffers from both psychological impairment(s) and chronic pain. The Tribunal has recognized that a diagnosis of a psychological impairment or chronic pain does not fall within the Guideline definition of minor injury.¹³ The applicant does not dispute that a psychological assessment was reasonably necessary for TD to determine the Guideline issue.

20While applicant attended at the psychological IE on January 26, 2018, she did not complete the examination.¹⁴ The applicant did not file any reply submissions to dispute TD’s submission that her application to the Tribunal should be barred. She does not claim that the psychological examination she attended on January 26, 2018 was unreasonable.

21Having incurred expenses because the applicant did not show up for two functional capacity assessments, it is understandable why TD refused to arrange further IEs without an agreement from the applicant, going forward, to pay the no-show or late cancellation fees. The Schedule does not, however, require an insurer to re-schedule an examination if it was not attended or completed by an applicant. The only remedy it provides is to bar the applicant from filing an application to the Tribunal.

22The Schedule recognizes that barring an applicant from commencing an application with the Tribunal is a harsh remedy and for that reason it allows the Tribunal complete discretion to permit the application to proceed.

23I am not prepared to exercise my discretion in this case for the following reasons:

(a) The applicant has not asked me to exercise this discretion. She does not address this issue in her reply submissions.

(b) The applicant’s evidence lacks credibility. Her claim for medical and rehabilitation benefits is based on the fact that the applicant was working full-time at the time of the accident and has not returned to work. According to her Income Tax returns for 2015 and 2016 her main source of income for both years was social assistance benefits. The applicant has not addressed this issue or provided any explanation for this major discrepancy in the evidence.

(c) The applicant did not comply with TD’s request that the applicant complete a Permission to Disclose Health Information Form (“OCF-5)” to allow TD to obtain the Clinical Notes and Records (“CNRs”) of her family physician, Dr. Chiang.¹⁵ She also did not comply with the Tribunal Order to produce the CNRs of Dr. Chiang for this hearing.¹⁶ She offers no explanation for either default.

24For the reasons provide above I find that the applicant is barred from bringing this application to the Tribunal. The application is dismissed.

25I hereby ORDER:

1. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10 s. 18(1).
2. 2O. Reg. 34/10 s. 33(6).
3. 3O. Reg. 34/10 s.55(1)2.
4. 4Treatment plan dated December 18, 2017, denied on January 2, 2018. Provided at the request of the Tribunal
5. 5Letter from TD to applicant dated January 2, 2018, Tab 6, TD’s submissions
6. 6Letter from TD to the applicant dated January 10, 2018, Tab 8 TD’s submissions
7. 7O. Reg.34/10 s. 44(5).
8. 8Letter from TD to the applicant dated January 30, 2018, Tab 9, TD’s submissions
9. 9Letter from TD to the applicant dated February 2, 2019, Tab 10, TD’s submissions
10. 10Letter from TD to the applicant dated March 6, 2018, Tab 11, TD’s submissions
11. 11O. Reg. 34/10 s. 38(10) permits an insurer to require an IE if it believes the Guideline applies.
12. 12O. Reg. 34/10 s. 44(1)
13. 1317-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (Reconsideration)
14. 14Letter from TD to applicant dated January10, 2018, Tab 8, TD’s submissions.
15. 15Letter from TD to applicant dated January 2, 2018, Tab 5, TD’s submissions
16. 16Case Conference Report and Board Order dated May 26, 2020, Tab 23, TD’s submissions