Citation: CP vs. Aviva General Insurance, 2020 ONLAT 19-002331/AABS

Released Date: 05/27/2020

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:

C. P.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Aimee Draper, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (“C.P.”) was involved in an automobile accident on December 23, 2015 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2The respondent (“Aviva”) previously approved treatment plans (“OCF-18s”) but denied the most recent OCF-18s. Aviva gave notice to C.P. of the requirement of in-person assessments to determine if the denied OCF-18s are reasonable and necessary.

3During the case conference, Aviva raised a preliminary issue. Specifically, it argued that C.P. was restricted from advancing her application due to her non-attendance at the requested insurer’s examinations. As a result, I must decide if C.P. can proceed with her claim for denied benefits.

PRELIMINARY ISSUE

[4] Has C.P. failed to comply with s. 44 of the Schedule? Aviva argues that C.P. is restricted from proceeding with her application to the Tribunal pursuant to s. 55 of the Schedule.

ISSUES

5The substantive issues in dispute to be determined are as follows:

a. Is the medical benefit in the amount of $1,232.81 for physiotherapy services recommended by Prime Health Care in an OCF-18 submitted on August 16, 2018 and denied on August 28, 2018, reasonable and necessary?

b. Is the cost of an examination expense in the amount of $2,000.00 for a chronic pain assessment recommended by Prime Health Care in an OCF-18 submitted on August 20, 2018 and denied on August 28, 2018, reasonable and necessary?

c. Is C.P. entitled to interest on any overdue payment of benefits?

d. Is C.P. entitled to receive an award for unreasonably withheld or delayed payments pursuant to section 10 of Reg. 664, R.R.O. 1990?

RESULT

6C.P.’s appeal is barred from proceeding under s. 55(1)(2) of the Schedule because she failed to attend insurer examinations (IEs) as required by s. 44(9)2(iii) of the Schedule. There are no overdue payments and therefore no interest owing to C.P. C.P. is not entitled to an award.

ANALYSIS

C.P.’s duty to attend s. 44 IEs and the consequences of non-compliance

7Section 44(1) of the Schedule governs IEs and, among other things, prescribes as follows:

a. Section 44(1) permits an insurer to require an insured person to be examined by one or more regulated health professionals to determine whether the insured is or continues to be entitled to a benefit. The section stipulates that this must not be done more often than is reasonably necessary;

b. Section 44(9)(2)(iii) requires the insured person to cooperate with the examination and to submit to all reasonable examinations requested by the examiner; and

c. The onus is on the insured person to establish a reasonable explanation.²

Consequences of Non-Compliance with s. 44 IE Requests

8Section 55(1)(2) of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has notified him or her that it requires an examination under s. 44, and the insured person has not complied with that section.

9On the evidence, C.P.’s Tribunal application was filed on March 6, 2019. At the time of her application, C.P. had failed to attend a s. 44 examination on five separate occasions. Without any evidence of why C.P. continued to be non-compliant, I find that pursuant to s. 55(1)(2) of the Schedule, C.P. is barred from proceeding with her Tribunal application.

10My finding is supported by Aviva’s evidence of C.P.’s non-compliance:

a. On September 14, 2018, Aviva notified C.P. of a s. 44 examination with Dr. Ko scheduled for October 15, 2018. C.P. requested this examination be rescheduled;

b. In a notice of examination dated October 2, 2018, C.P. was advised of an assessment scheduled with Dr. Oshidari for November 15, 2018. C.P. failed to attend;

c. By way of letter dated November 23, 2018, Aviva notified C.P. of an assessment scheduled with Dr. Ko for December 6, 2018. C.P. did not attend;

d. In a letter dated January 10, 2019, Aviva notified C.P. she has being held in non-compliance due to her failure to attend the scheduled s. 44 assessments;

e. A letter dated February 26, 2019 notified C.P. of a s. 44 assessment scheduled with Dr. Oshidari for March 23, 2019. C.P. failed to attend this assessment;

f. A letter dated March 21, 2019, notified C.P. of an assessment scheduled with Dr. Oshidari for April 13, 2019. C.P. failed to attend this assessment;

g. A notice of assessment dated June 6, 2019, advised of an assessment with Dr. Dessouki for July 16, 2019. C.P. again did not attend;

h. Aviva sent a notice of examination to C.P. by way of letter August 6, 2019, advising of an assessment scheduled with Dr. Ko for September 5, 2019. C.P. failed to attend;

i. Aviva sent C.P. a letter dated September 19, 2019 confirming C.P.’s non-attendance at the September 5, 2019 s. 44 examination. The letter also advised C.P. that she remained in non-compliance; and

j. In a notice of examination letter dated October 10, 2019, Aviva notified C.P. of a s. 44 assessment scheduled with Dr. Feloiu for November 5, 2019. C.P. attended this assessment subsequent to filing her Tribunal application.³

11C.P. did not make herself available for the reasonably required s. 44 assessments as required by the Schedule. There is no evidence that C.P. raised any concerns with Aviva about the s. 44 requests. C.P.’s failure to comply with the s. 44 examination requests undermines the credibility of her claim in this proceeding.

12C.P. did not put forth any evidence that would have assisted me or Aviva in understanding her repeated non-compliance with the s. 44 notices. Further, I do not find that Aviva’s s. 44 notices were deficient. For the above reasons, I find that C.P. is barred from proceeding with her appeal of Aviva’s refusal to pay the OCF-18s.

AWARD

13Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. C.P.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Aviva) has “unreasonably” withheld or delayed payments.

14I have already found that C.P. is not entitled to any benefits, therefore Aviva cannot be found to have unreasonably withheld payment. As such, C.P. is not entitled to an award.

CONCLUSION

15C.P.’s appeal is barred because of her failure to attend IEs requested by Aviva under s. 44 of the Schedule. Accordingly, a determination of the substantive issues in dispute is not necessary, and C.P.’s appeal is dismissed.

Footnotes

1. 1O. Reg. 34/10
2. 2Horvath v. Aviva Insurance Co. of Canada, 2003 OFSCID No. 92
3. 3Respondent’s Document Brief – Tab H