Licence Appeal Tribunal
Released: June 15, 2020
Tribunal File Number: 18-012718/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:
L. P. Applicant
and
Aviva General Insurance Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam, Vice Chair
APPEARANCES
For the Applicant: Ramy Akladios, Counsel
For the Respondent: Nabila Majidzadeh, Counsel
HEARD by way of submissions in writing
OVERVIEW
1The applicant, L. P. ("applicant"), was in an automobile accident on March 26, 2017 and sought benefits under the Statutory Accident Benefits Schedule - Effective September 1, 20101 ("Schedule"), including medical benefits beyond those prescribed for minor injuries under the Minor Injury Guideline ("MIG"),2 several treatment plans, the cost of an examination, and non-earner benefits ("NEBs"). The respondent, Aviva General Insurance ("respondent"), denied benefits. The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of this dispute on December 28, 2018.
2The respondent requested a preliminary issue hearing to determine whether the applicant is precluded from proceeding with her application because she failed to attend s. 44 insurer's examinations ("IE") addressing the disputed treatment plans, cost of an examination and NEB.
PRELIMINARY ISSUE TO BE DECIDED
3The issue before me in this written hearing is:
(i) Whether the applicant is barred from proceeding with her claim for accident benefits as she failed to submit to an insurer's examination under s. 44 of the Schedule?
RESULT
4I find the applicant is barred from proceeding with her application because she failed to attend s. 44 examinations. The application is dismissed.
FACTS
5Following the accident, the applicant submitted an OCF-1 application for accident benefits, an OCF-3 disability certificate and three OCF-18 treatment plans. In response, the respondent gave notice to the applicant of the IEs set out below.
6On May 25, 2017, the respondent advised the applicant that she may be eligible for NEBs, gave her notice to attend an Examination under Oath ("EUO") on August 2, 2017. The applicant cancelled the EUO. The respondent advised the applicant by letter dated November 2, 2017 that the respondent is not liable to pay a benefit for any period during which the applicant failed to attend the EUO.
7The respondent sent the applicant notice to attend an in-home assessment March 7, 2018, a psychology assessment March 13, 2018 and an orthopaedic assessment March 21, 2018 to address the NEB. The respondent's correspondence confirms receipt of applicant's disability certificate and gives as the medical reason that the impairments identified do not appear clearly or directly to be caused by the accident. The notice refers to s. 44 and the applicant's requirement to attend the respondent's IEs. The respondent notes it will not be able to consider payment for the NEB until it receives the results of the examination. The applicant did not attend any of these three IEs.
8The respondent re-scheduled the psychology assessment to April 18, 2018. Notice was given to the applicant. The applicant did not attend.
9In response to the treatment plan for $2,547.81, the respondent told the applicant that she had been pre-approved for up to $2,200.00 under the MIG, and advised her that, based on the information it had, her injuries appeared to be treatable in the MIG. The respondent sent the applicant notice of a general practitioner assessment for June 29, 2017 for this disputed treatment plan. The medical reason given was that the health practitioner has not provided compelling evidence that the impairment sustained is not predominantly a minor injury. The applicant did not attend. On July 10, 2017 the respondent advised her counsel that the applicant had failed to attend the IE. No response was received by the respondent.
10In response to the treatment plan for $1,314.25, the respondent informed the applicant on November 2, 2017 she had been pre-approved for up to $2,200.00 of treatment under the MIG and again asked the applicant to submit a pre-approved treatment confirmation form. The applicant was advised that an insurers examination would be scheduled to review the recommended treatment. The respondent sent the applicant notice of a general practitioner assessment for November 23, 2017. The medical reason given was that the health practitioner has not provided compelling evidence that the impairment sustained is not predominantly a minor injury. The applicant did not attend.
11The respondent sent the applicant notice to attend an orthopaedic assessment for March 21, 2018, re-scheduled to March 22, 2018 to address NEB. The medical reason given was that the health practitioner has not provided compelling evidence that the impairment sustained is not predominantly a minor injury. The applicant did not attend.
12In response to the treatment plan for $2,000.00, psychology assessment, the respondent wrote to the applicant on November 27, 2017 notifying her that this treatment plan could not be considered due to insufficient information about her claim for accident benefits, that her claim for accident benefits remains suspended as she failed to attend and participate in her EUO and she has been placed under noncompliance in accordance with s. 33(6).
13February 12, 2018 the respondent sent the applicant notice to attend a psychology assessment on March 13, 2018. The medical reason given was that the health practitioner has not provided compelling evidence that the impairment sustained is not predominantly a minor injury. The applicant did not attend.
14The respondent re-scheduled the psychology assessment to April 18, 2018. The applicant did not attend. On April 20, 2018 the respondent asked the applicant to complete a form explaining the missed appointments so it could consider re-scheduling. No response was received by the respondent.
15The respondent submits that, at the July 25, 2019 case conference, applicant's counsel indicated for the first time that the applicant was willing to attend the IEs.
Positions of the Parties
16The respondent submits that under s. 55 of the Schedule the applicant is precluded from proceeding with her application because she failed to attend the IEs on six separate occasions without reasonable explanation for not attending and that the respondent's notices met the requirements of the Schedule. The respondent relies on several previous decisions of the Tribunal. The respondent also submits it is prejudiced by the delay in the applicant agreeing to attend the IE's at the case conference because the respondent cannot adequately investigate whether the proposed treatments and assessments were reasonable and necessary when they were submitted.
17The applicant submits that the respondent did not provide a clear and sufficient explanation why her NEB was being denied and did not disclose its "medical reasons" and that the respondent was maintaining a MIG position. The applicant also submits the respondent did not give notice of the examinations as required by s. 44(5) of the Schedule before February 12, 2018 and when it did, the notice did not specify which benefit listed in the disability certificate is in dispute and failed to provide the applicant with the sufficient reasons for the examinations. The respondent did not explain to the applicant which benefit was in dispute, rendering the applicant unable to determine whether the s. 44 examinations are "reasonably required to assist the insurer" referenced to s. 33(1) of the Schedule. The applicant also submits that the respondent's failure to disclose the benefit in dispute in its s. 44 notice dated February 12, 2018 renders the applicant's non-attendance a "reasonable explanation" as envisioned in s. 33(8)(b) of the Schedule and therefore the respondent must pay all amounts withheld during the period of non-compliance as per s. 33(8)(b). The applicant further submits that she has demonstrated ongoing entitlement to payment of NEB and that she is entitled to receive NEB between the period the disability certificate was submitted until a denial notice was sent to the applicant. The applicant relies on T.A. v. Aviva General Insurance Company3 and T.F. v. Peel Mutual Insurance Company4.
LAW AND ANALYSIS
18Section 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.
19Section 38(10) requires the insurer to notify the insured person under s. 38(8) if the insurer believes that the MIG applies to the insured person's impairment and the insurer may require the insured person to undergo an examination under s. 44.
20The requirements for the notice of examination set out in s. 44(5) of the Schedule are:
(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.
21Section 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.
22Section 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).
23The 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 because she did not attend s. 44 IEs on six occasions?
24I find that the applicant is barred from proceeding with her application for failing to attend the IEs because she does not have a reasonable explanation for her failure to attend. None of the applicant's numerous submissions are a reasonable explanation for her non-attendance.
25I find that the respondent satisfied its notice obligations under the Schedule as the notices and for the IE's give the required medical and other reasons, meet all other requirements of s. 44(5) and s. 38(8) of the Schedule. The insurer met its obligation to made the medical and other reasons clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue as mandated by T.F. v. Peel Mutual. The applicant's argument that explanations and notices of the IEs were not clear, did not disclose sufficient reasons or explanation is not supported by the evidence. The respondent's correspondence to the applicant is detailed and sets out it's position that the applicant's injuries appear to be in the MIG. The respondent's correspondence explained how each IE and the EUO related to benefits possibly available to the applicant. Almost all of the correspondence sent by the respondent was copied to applicant's counsel. The applicant did not seek any clarification or further explanation at the time it received the respondent's correspondence or at any time after.
26The applicant's argument that she has demonstrated entitlement to NEB and that she is entitled to NEB for some or all of the time since the accident is not relevant to the issue in this hearing of whether the applicant is barred from proceeding with her application because she failed to attend the IEs. None of the applicant's s. 33 arguments constitute a reasonable explanation for the applicant's non-attendance at the IEs.
27The respondent was within its rights to request IEs to assess as part of determining if the applicant is entitled to the benefit being considered and the applicant was required to attend, absent reasonable explanation. The respondent has now been deprived of examining the applicant for some 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. Neither of the cases cited by the applicant operate to extinguish the respondent's rights to IEs in the circumstances of this case. The applicant cites T.A. v. Aviva General Insurance Company is not helpful as that case relates to entitlement to benefits.
28Although 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 not put forward reasonable explanation for her non-attendance at the IEs. Despite clear correspondence and notices from the respondent, the applicant did not make any attempt to respond or communicate in any with the respondent about the IEs. The applicant did not make any submissions on whether she is willing to attend the IEs now. Assuming that she is willing to do so, I find that this would prejudice the respondent given the passage of time. Some three years have now passed since the accident and some two years since applicant's non-attendance at the IEs.
ORDER
29The applicant is barred from proceeding with her application because she failed to attend the respondent's s. 44 IEs. The application is dismissed.
Released: June 15, 2020
_________________________
Avril A. Farlam, Vice Chair
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent's Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
- 2019 CanLii 11080 (ONLAT)
- 2018 CanLii 39373 (ONLAT)
- Horvath 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.).