N.L. v. Aviva Insurance Canada, 2020 CanLII 12701

Citation: N.L. vs. Aviva Insurance Canada, 2020 ONLAT 18-011431/AABS

Released Date: January 27, 2020

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:

N.L.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

Adjudicator:

Melody Maleki-Yazdi

APPEARANCES:

Paralegal for the Applicant:

Kim Mohammed-Sieudhan

Counsel for the Respondent:

Devon McIntyre

Heard in writing:

August 26, 2019

OVERVIEW

1N.L. (“the applicant”) was involved in an automobile accident on August 9, 2016, and sought and received benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). She applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution when some of the disputed benefits were denied.

2There are three areas of dispute between the parties: (i) a dispute over whether the applicant must attend a psychological insurer’s examination (“IE”) prior to proceeding with her claim; (ii) whether her impairments fall within the Minor Injury Guideline (“the MIG”); and (iii), whether she is entitled to five treatment plans (OCF-18).

3With respect to the psychological assessment, the applicant submits that she reasonably requested that the respondent reschedule the IE; however, the respondent failed to comply. The respondent submits that, pursuant to s. 55 of the Schedule, the applicant is precluded from applying to this Tribunal because she failed to attend the IE for the psychological assessment and that she did not meet her onus to establish a reasonable explanation for not attending the IE.

4The respondent denied the five treatment plans on the basis that they are not reasonable and necessary. The respondent determined that the applicant had sustained a predominantly “minor injury” and is subject to the $3,500.00 limit for medical benefits under the s. 18 of the Schedule. The applicant disputes this and asks me to find that she is not subject to the limit, that the treatment plans are reasonable and necessary and that the respondent is obliged to pay for them.

ISSUES

5The following issues are in dispute for this hearing:

Preliminary issue

1. Is the applicant barred from proceeding with her claim for a psychological assessment as she failed to submit to an insurer’s examination under s. 44 of the Schedule?

Substantive issues

2. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule?

3. Is the applicant entitled to receive a medical benefit in the amount of $3,939.48 for chiropractic services, recommended by Complete Rehab Centre in a treatment plan submitted August 29, 2016, and denied by the respondent on December 1, 2016?

4. Is the applicant entitled to receive a medical benefit in the amount of $2,399.49 for chiropractic services, recommended by Complete Rehab Centre in a treatment plan submitted January 23, 2017, and denied by the respondent on January 24, 2017?

5. Is the applicant entitled to receive a medical benefit in the amount of $2,108.11 for chiropractic services, recommended by Complete Rehab Centre in a treatment plan submitted August 14, 2017, and denied by the respondent on August 15, 2017?

6. Is the applicant entitled to payments for the cost of examinations in the amount of $2,636.28 for a psychological assessment, recommended by Elite Specialist Group in a treatment plan submitted October 31, 2017, and denied by the respondent on November 16, 2017?

7. Is the applicant entitled to payments for the cost of examinations in the amount of $2,460.00 for an orthopedic assessment, recommended by Elite Specialist Group in a treatment plan submitted July 6, 2017, and denied by the respondent on August 17, 2017?

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

RESULT

6On the preliminary issue, I find that the applicant is statute-barred from applying to the Tribunal pursuant to s. 55 for failing to attend the IE for the psychological assessment.

7As I have found that the applicant is precluded from applying to the Tribunal until such time that she attends the IE, I have not embarked on an analysis of the substantive issues in dispute. Accordingly, no award or interest is payable.

ANALYSIS

Preliminary issue regarding the applicant’s non-attendance at the psychological IE assessment

8The respondent denied the applicant’s claims for chiropractic services, a psychological assessment and an orthopaedic assessment on the basis that the applicant had sustained a predominantly “minor injury” and was subject to the MIG limit of $3,500.00.

9The respondent scheduled IEs to determine whether the applicant’s injuries were minor and whether the benefits claimed were reasonable and necessary.

10The applicant did not attend the IE for a psychological assessment. The applicant submits that she reasonably requested that the respondent reschedule the psychological IE assessment and the respondent failed to comply.

11The respondent submits that the application should be dismissed as the applicant has failed to attend the IE pursuant to s. 55 of the Schedule.

12Section 55(1)2 states that if an insurer gives an insured notice in accordance with the Schedule that it requires an IE, and if the insured does not comply with that notice, then the insured shall not apply to the Tribunal. Section 55(2) permits the Tribunal to allow an insured to apply despite the non-compliance.

The respondent’s efforts to schedule the IEs

13Section 44(9)(2)(i) of the Schedule sets out that “if the attendance of the insured person is required, the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person.”

14Section 44(9)(2)(iii) of the Schedule sets out that “if the attendance of the insured person is required, the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.”

15The respondent submits that the onus is on the applicant to establish a reasonable explanation for not attending an IE and that she has failed to meet the onus.²

16The applicant submits that she had every intention of attending the examination, but on a day, time and location that is convenient pursuant to s. 44(9)(2)(i) of the Schedule.

Timeline of correspondence

Notice letter dated November 16, 2017

17The respondent sent the applicant a notice letter dated November 16, 2017, advising that the applicant is required to attend an IE for a psychology assessment conducted by Dr. Amena Syed, neuropsychologist, on December 7, 2017 at 11:00 a.m. The applicant did not reply to this letter.

Letter dated November 25, 2017

18The respondent sent the applicant a letter dated November 25, 2017, advising the applicant once again of the upcoming IE for a psychology assessment. The content of the letter matches the content of the earlier November 16, 2017 notice letter. The applicant did not reply to this letter.

Letter dated December 13, 2017

19The respondent sent the applicant a letter dated December 13, 2017, attaching an invoice for not attending the IE for a psychology assessment. The letter outlines the respondent’s prior letter requiring the applicant to attend an independent medical examination and explaining that a no-show/cancellation fee will be charged to the applicant if she did not attend her examination, or if she cancelled less than three business days before the scheduled examination. The letter further states that should the applicant require clarification or further information, to please not hesitate to contact its office. The applicant did not reply to this letter.

Analysis

20I find that the applicant is barred from applying to the Tribunal for failing to attend the IE for the psychological assessment because she does not have a reasonable explanation for her failure to attend. It appears that the respondent scheduled the examination without consulting the applicant; however, in the weeks following the receipt of the notice letters, the applicant failed to notify the respondent that the date, time and/or location were inconvenient.

21The applicant submits that the respondent did not issue any correspondence either rescheduling the examination or noting any non-attendance. I find that although the respondent has not provided any evidence that it issued correspondence rescheduling the IE assessment, it did issue correspondence noting the applicant’s non-attendance at the IE. There is evidence that once the applicant did not attend the scheduled IE assessment, the respondent sent the applicant a letter dated December 13, 2017, attaching an invoice for her no-show/cancellation fee. The letter further states that should the applicant require clarification or further information to contact its office. Therefore, I find that the respondent made an effort to contact the applicant once she failed to attend the IE although it did not specifically reschedule the IE.

22I find that the applicant does not have a reasonable explanation for her failure to attend the psychological IE assessment scheduled for December 7, 2017. In fact, the applicant has not provided any explanation for her failure to attend the assessment. Instead, the applicant submits that she requested that the respondent reschedule the assessment, but that the respondent did not reply. The respondent submits that it did not receive any mail or email correspondence requesting the assessment to be rescheduled. I find that the applicant has not provided any evidence that she contacted the respondent to request for the assessment to be rescheduled.

23I find that, pursuant to s. 55 of the Schedule, the applicant is barred from applying to the Tribunal for failing to attend the IE for the psychological assessment until such time that she attends the IE. I note that s. 55(2) permits the Tribunal to allow an insured to apply despite being statute-barred under s. 55(1)2. As I find that the applicant has no reasonable explanation for her non-compliance with the respondent’s IE request, I decline to exercise the discretion afforded by s. 55(2).

CONCLUSION

24On the preliminary issue, I find that the applicant is statute-barred from applying to the Tribunal pursuant to s. 55 for failing to attend the IE for the psychological assessment.

25As I have found that the applicant is precluded from applying to the Tribunal until such time that she attends the IE, I have not embarked on an analysis of the substantive issues in dispute. Accordingly, no award or interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2D.C. v. Aviva General Insurance Canada, 2018 CanLII 76416 (ON LAT).