M.Y. v. Wawanesa Mutual Insurance Company, 2020 CanLII 34493

Licence Appeal Tribunal

Citation: MY v. Wawanesa Mutual Insurance Company, 2020 ONLAT 19-003973/AABS

Tribunal File Number: 19-003973/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits

Between:

[M.Y.]

Applicant

And

Wawanesa Mutual Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES

For the Applicant: Mitchell J. Barber and Fawad Siddiqui, Counsel

For the Respondent: James Schmidt, Counsel

HEARD In Writing: December 13, 2019

OVERVIEW

1The applicant, [M.Y.] ("applicant"), was in an automobile accident on March 1, 2017 and sought benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ ("Schedule") including an income replacement benefit (IRB), attendant care and medical benefits beyond those prescribed for minor injuries, i.e. s. 18(1) of the Schedule and the Minor Injury Guideline ("MIG"). The respondent Wawanesa Mutual Insurance Company ("respondent") denied benefits. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service for resolution of this dispute.

2The respondent requested a preliminary issue hearing to determine whether the applicant is precluded from proceeding with her application (save and except for the IRB claim), pursuant to s. 55(1) of the Schedule, because she failed to attend two s. 44 insurer's examinations ("IE") addressing attendant care benefits and MIG.

PRELIMINARY ISSUE TO BE DECIDED

3The issue before me in this written hearing is:

Is the applicant prevented from proceeding with her application (save and except for the IRB claim) because she failed to attend two s. 44 examinations?

RESULT

4I find the applicant is barred from proceeding with her application (save and except for the IRB claim) because she failed to attend two s. 44 examinations.

FACTS

5Following the accident, the applicant attended three IEs in 2017.

6In February 2018, the applicant sent the respondent an OCF-18 treatment plan from Dr. Harris, applicant's psychologist, which recommended a mental health assessment for the applicant. In response, on February 15, 2018, the respondent gave the applicant a Notice of Examination for an IE with Dr. Seon, psychologist, together with an explanatory letter which stated "We have reviewed the above-noted Treatment and Assessment Plan...as well as all other medical documentation provided. We have compared it to the criteria in the Minor Injury Guidelines as well as the treating health practitioner's opinion and concluded that they do not provide compelling evidence that the injuries fall outside of the Minor Injury Guidelines. Therapist indicates it being out of the Minor Injury Guideline without providing any reason/rationale to conclude such...new and different injuries are reported in this Treatment and Assessment Plan...medical documentation on the file, you have sustained predominantly Minor Injuries in the accident....There is no psychological sequela listed on any of the medical documentation on the file so far. At this time we require the decision of an independent medical assessor to determine reasonableness and necessity of the above-noted Treatment Assessment Plan...." The respondent's correspondence refers to sections 44(9), 38(13), 55 and 56 of the Schedule.

7On February 27, 2018, the applicant's counsel notified the respondent that the applicant would not be attending the IE on legal grounds summarized as there is no provision in the Schedule which "...permits an evaluation under s. 44 to determine the applicability of the MIG".

8In March 2018, the applicant sent the respondent an Assessment of Attendant Care Needs (Form 1). In response, on March 7, 2018 the respondent gave the applicant a Notice of Examination for an IE with Andrew Phillips, occupational therapist, together with an explanatory letter which stated "In light of the time that has passed since the [bus accident], an Insurer's Examination under Section 44...is required to assist the insurer in determining if there is any need for an attendant care as well as to address the reasonableness and necessity of the proposed Assessment of Attendant Care Needs..." The letter states that the applicant's attendance for the examination is required, refers to sections 44(5), 44(9), 42(14), 42(13), 55, 56, 3(7)(e), 19(4), 19(5) and encloses a copy of section 44.

9On March 28, 2018, the applicant's counsel notified the respondent that the applicant would not be attending the IE on legal grounds including that "...we object to submitting our client to your s. 44 Insurer Examination, as it appears that this IE is being scheduled as a substitute for our client's Assessment of Attendant Care Needs and Form 1." In the applicant's view, the respondent was not entitled to conduct an IE in relation to attendant care benefits.

10Although there was further correspondence, the applicant did not attend either of the two IEs arranged by the respondent.

11The applicant applied to the Tribunal on April 9, 2019.

Positions of the Parties

12The respondent submits that the applicant is precluded from proceeding to a hearing in accordance with s. 55 of the Schedule because she failed to attend the two IEs arranged by the respondent, without reasonable explanation for not attending. The respondent relies on numerous decisions in support of its position that the applicant is required to attend the IEs, absent reasonable excuse, and in support of its position that the notice provided to the applicant met the requirements of the Schedule.

13The applicant's counsel submits that she didn't attend because he determined that she was not legally required to do so because:

i. the first IE was for purposes of determining the applicability of the MIG, which is not permitted;

ii. the second IE was scheduled as a substitute for the Assessment of Attendant Care Needs (Form 1); and

iii. both IEs were unnecessary, violate the applicant's privacy and are unlikely to yield any new information given that she previously attended three IEs.

14The applicant relies on Scarlett v. Belair Insurance,² M.F. v. Allstate Insurance Company³ and Kitchenham v. AXA Insurance⁴ in support of her position.

LAW AND ANALYSIS

15Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

16Section 44(3)(a) provides that s. 44(1) does not apply to a benefit payable in accordance with the Minor Injury Guideline.

17Section 38(10) requires the insurer to notify the insured person under s. 38(8) if the insurer believes that the Minor Injury Guideline applies to the insured person's impairment and the insurer may require the insured person to undergo an examination under s. 44.

18Section 44(9)3 provides that if the examination relates to an application for attendant care benefits, the report of the examination must include an assessment of attendant care needs prepared in accordance with s. 42.

19The requirement for the notice of examination are set out in s. 44(5) of the Schedule:

(i) the medical and any other reasons for the examination;

(ii) whether the attendance of the insured person is required at the examination;

(iii) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(iv) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

20Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.

21Section 55(2) of the Schedule provides that the Tribunal may permit an insured person to apply despite paragraph 2 or 3 of s. 55(1). Section 55(3) provides that the Tribunal may impose terms and conditions on a permission granted under s. 55(2).

22The onus is on the insured person to put forward a reasonable explanation for non-attendance at an IE.⁵

Is the applicant barred by s. 55 from proceeding with her application (save and except for the IRB claim) because she did not attend two s. 44 IEs?

23I find that the applicant is barred from proceeding with her application (save and except for the IRB claim) for failing to attend the IEs because she does not have a reasonable explanation for her failure to attend.

24The applicant's counsel, based on his interpretation of the Schedule, took the position that the applicant was not legally obligated to attend either IE. This interpretation was not correct.

25The respondent's right to request IEs in response to the 2018 information sent to it by the applicant is clear. Section 44 provides that for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined.

26In this case the purpose for each examination was to respond to the new documents, the psychological treatment plan and the assessment of attendant care needs, sent by the applicant to the respondent in 2018, after the insurer had already conducted IEs in 2017. The IEs conducted in 2017 could not address the 2018 documents because the insurer did not have them yet. It was the additional documentation sent by the applicant to the respondent in 2018 that triggered the request for the two additional IEs in 2018.

27The respondent is required by s. 44(5) to give reasons for the examinations, which it did in the explanatory letters sent to the applicant with each notice of examination. Expressing doubt about whether the applicant's injuries fall outside the MIG as the respondent did in its letter to the applicant of February 15, 2018 does not violate the Schedule or disentitle the respondent to an IE but rather gives the applicant disclosure of the respondent's position. Requesting an IE as the respondent did in its letter to the applicant of March 7, 2018 is not substituting an IE for the Assessment of Attendant Care Needs but rather is the respondent exercising its s. 44 right to assess as part of determining if the applicant is entitled to a benefit.

28The applicant's submission that she should not be required to attend more IEs because they are unnecessary, violate the applicant's privacy and are unlikely to yield any new information is not persuasive. Section 44 provides that the IEs shall be "...no more often than is reasonably necessary". In this particular case, I find that the respondent requesting two more IEs to respond to new documentation sent by the applicant does not offend the "no more than is reasonably necessary" requirement. Whether or not any new information would have come from the IE's is not relevant. She was required to attend the IEs absent reasonable explanation. The respondent has now been deprived of examining the applicant for two years and the passage of time prejudices the respondent who will never be able to assess the applicant at the time it was entitled to. I find that based on the particular facts of this case, the IEs requested by the insurer are not an intrusion into the privacy of the applicant as urged by the applicant.⁶ The situation here is distinguishable from that in Kitchenham where the comments about privacy were made by Heeney, J. in the context of a motion seeking an Order of the court for production of an IE conducted in another court action. None of the cases cited by the applicant operate to extinguish the respondent's rights to IEs in the circumstances of this case.

29The notices are in accordance with s. 44(5) which requires the insurer to explain the "medical and any other reasons" for the IEs.

30By maintaining the position that the applicant was not obligated to attend the IEs, the applicant took the risk that her application could be barred pursuant to s. 55. An erroneous legal position is not in my view a reasonable explanation for non-attendance at the IEs.

31Although s. 55(2) permits the Tribunal to allow an insured to apply despite being barred and s. 55(3) provides that the Tribunal may impose terms and conditions on any permission granted, I decline to exercise my discretion under these sections because the applicant has put forward no reasonable explanation for her non-attendance at the two IEs. I note that the applicant submitted she "...has not and does not object to submitting to Insurers Examinations which address the reasonableness and necessity of a treatment plan. Its objections reside in using s. 44 to address applicability of the MIG...". This does not amount to an offer to attend the IEs now and if it was intended to be, it is too little too late. Some two years have now passed since the applicant's non-attendance at the IEs.

ORDER

32Save and except for her IRB claim, the applicant is barred from proceeding with her application pursuant to s. 55 of the Schedule because she failed to attend two s. 44 IEs.

Footnotes

1. 1O.Reg. 34/10
2. 2Scarlett v Belair Insurance, 2015 ONSC 3635 (Div. Ct.)
3. 3M.F. v. Allstate Insurance Company, 2018 CanLII 39376 (ON LAT)
4. 4Kitchenham v. Axa Insurance, 2005 CanLII 16620 (ONSC)
5. 5Horvath v. Allstate Insurance Co. of Canada, 2003 OFSCID No. 29, affirmed in State Farm Mutual Automobile Insurance Company v. S.R., 2013 ONSC 2086 (Div. Ct.).
6. 6Kitchenham v. Axa Insurance, supra