Tribunal File Number: 18-012511/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:
J. F.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris, Adjudicator
APPEARANCES:
For the Applicant:
Ian Drong, Counsel
For the Respondent:
Marcin J. Panasewicz, Counsel
HEARD:
In Writing on August 12, 2019
OVERVIEW
1The applicant was injured in an automobile accident on March 9, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and in response, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
2As the matter progressed, the respondent raised a preliminary issue which is the subject of this hearing.
ISSUES
3The preliminary issue in dispute is as follows: Is the applicant barred from commencing a proceeding because she failed to comply with section 44 of the Schedule by not attending insurer’s examinations?
RESULT
4The applicant failed to attend properly scheduled insurer’s examinations and, as a result, is barred from disputing her entitlement to non-earner benefits. The issue is struck from the application dated December 20, 2018 (“the application”).
5The applicant may proceed with her claim for entitlement to the medical benefits listed in the application.
BACKGROUND
6The applicant suffered a knee fracture and medial collateral and posterior cruciate ligament tears as a result of being struck by a vehicle as a pedestrian. She claimed entitlement to non-earner benefits (“NEBs”) as a result of the injuries suffered in the accident.
7The respondent requested the applicant attend insurer’s examinations (“IEs”) to determine the extent of her injuries and obtain a medical opinion on whether she qualified for NEBs. To be clear, the IEs did not deal with any of the medical benefits that the applicant claims in her application.
8To date, the applicant has not attended an IE. The respondent submits that, as a result, the applicant should be barred from proceeding to a substantive hearing in respect of her entitlement to NEBs because she failed to attend properly scheduled IEs. For her part, the applicant contends the respondent failed to make reasonable efforts to schedule the IEs in a manner convenient for her. She also submits the respondent is responsible for a delay in scheduling the IEs and that it would now be unreasonable for her to attend IEs scheduled before and after the initial case conference relating to this application.
9For the following reasons, I find the applicant has failed to attend properly scheduled IEs. As a result, I find the applicant may not proceed with her application to dispute entitlement to NEBs.
DID THE APPLICANT ATTEND THE INSURER EXAMINATIONS (“IEs”)?
10Section 44 of the Schedule provides the respondent with the ability to examine an insured person for the purpose of determining if that person is or continues to be entitled to a benefit. The respondent’s ability to request IEs is not absolute. It must follow the notice requirements outlined in the section and must not exercise this right more than reasonably necessary.
11The series of events leading to this hearing is long and complicated. In short, the respondent made several attempts to schedule IEs, in response to which the applicant asked several times for the IEs to be rescheduled. There was also a period of over one year, between September 2017 and December 2018, during which the respondent felt no need to schedule IEs because it mistakenly believed the applicant was no longer seeking entitlement to NEBs.
12The respondent submits that it takes no issue with the scheduling and rescheduling of nine IEs to assess the applicant’s initial entitlement to NEBs for the period from the summer of 2017 up to early 2019. To me, the respondent’s position acknowledges its role in a delay in scheduling IEs and puts no responsibility on the applicant for the scheduling and rescheduling of IEs during this period up to early 2019.
13The focus of this hearing is on the respondent’s claims that the applicant’s failure to attend four IEs, separately scheduled for April 10, 11, 24, and May 7, 2019, prohibit her from disputing entitlement to NEBs. For the following reasons, I agree.
14The applicant does not dispute the validity of the notices for the IEs scheduled for April 10, 11, 24, and May 7, 2019. Instead, she only submits it is unreasonable to conduct IEs so closely before and after a case conference (scheduled for April 25, 2019). I disagree. The applicant provides no grounds for this position other than to submit it would be counterproductive and wasteful to attend IEs on the eve of a case conference, when settlement opportunities are both contemplated and encouraged. While I appreciate the applicant’s focus on resolution at the case conference, this narrow focus fails to appreciate that resolution is only one of several potential outcomes of a case conference.
15Indeed, this matter did not resolve at the case conference and the applicant’s failure to attend the IEs has left the respondent with no independent medical opinion on the applicant’s impairments.
16I see no legislative or precedential basis for the applicant’s position that it is unreasonable to conduct IEs so closely before and after a case conference. She does not refer me to an exemption provided by the Schedule or the Tribunal Rules, nor does she provide any applicable precedent for such a remedy. As a result, the applicant is not exempt from attending the IEs because of the proximity of the case conference.
WHAT IS THE RESULT OF NOT ATTENDING THE IEs?
17The language in section 55 is compulsory. The applicant shall not apply to the Tribunal if she is not compliant with section 44. The applicant, however, may still proceed if the Tribunal permits her to pursuant to section 55(2). Section 55(3) provides the Tribunal may impose terms and conditions on such permission. I see no reason to allow the applicant to proceed with her claim for initial entitlement to NEBs.
18The applicant submits there is insufficient evidence to show that her requests to reschedule IEs were unreasonable and she should be permitted to proceed with her application pursuant to section 55(2). The applicant submits this is the reasoning from 17-007683 v Aviva1 and this ought to be applied to this matter. While I find the case cited to be similar to this dispute, I disagree with the applicant’s interpretation of it.
19The determination in 17-007683 v Aviva permitted the applicant to make an application, but found she was barred from proceeding with the application until she attended the requested IEs. I find the case cited is similar to the matter at hand. However, the key difference here is that there is only one issue, initial entitlement to NEBs, considered in the IEs and the IE’s are not related to the applicant’s remaining claim for medical benefits.
20The applicant’s position does not compel me to grant her permission to dispute entitlement to NEBs pursuant to section 55(2). The respondent’s adjusting of the applicant’s claim up to the properly scheduled IEs does not permit the applicant to avoid attending the IEs. As noted above, the respondent would be prejudiced by a lack of independent medical opinion if the applicant was permitted to proceed with the application to resolve the dispute over entitlement to NEBs.
21In summary, the applicant has failed to attend the properly scheduled IEs and is barred from adjudicating entitlement to NEBs. As a result, the issue is struck from the application.
NEXT STEPS
22The dispute over entitlement to the remaining benefits should not be prolonged. I see no reason to prevent the applicant from proceeding with her claim for medical benefits because the claims were not referred to IEs. To this note, I will order a new case conference to explore settlement and address case management as required.
CONCLUSION AND ORDER
23Considering the totality of the case law and evidence before me, I find the applicant has failed to attend properly scheduled IEs and is barred from making an application to the Tribunal to dispute entitlement to the benefit. As a result, the issue is struck from the application.
24The applicant is permitted to dispute entitlement to the medical benefits listed in the application dated December 20, 2018. This will be addressed at the forthcoming case conference.
25As soon as reasonably possible, the Tribunal must schedule a case conference to address the remaining issues in dispute.
Released: January 31, 2020
Brian Norris
Adjudicator
Footnotes
- 17-007683 v Aviva Insurance Canada, 2018 CanLII 81958 (ON LAT)