Released Date: 07/30/2020
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:
K.A.
Applicant
and
Aviva General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR: Sandeep Johal
APPEARANCES:
Counsel for the Applicant: Michelle F. Jorge
Counsel for the Respondent: Nathalie V. Rosenthall
Heard: By way of written submissions
OVERVIEW
1 The applicant was injured in an automobile accident on March 20, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2 The applicant applied for an income replacement benefit (“IRB”) and other benefits that were denied by the respondent. The applicant disagreed with that decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3 At the case conference the respondent raised a preliminary issue that the applicant is barred from proceeding with the Tribunal application for an IRB by virtue of section 55(1) 2. of the Schedule because the applicant failed to attend at the respondent’s s. 44 insurer examination (“IE”) requests.
PRELIMINARY ISSUE TO BE DECIDED
4 The following is the preliminary issue to be decided:
i. Is the applicant barred from proceeding with her claim for income replacement benefits due to non-attendance at an insurer’s examination under section 44 of the Schedule and or/due to non-compliance with the respondent’s s.33 request for more information made in November, 2016?
5 In her submissions, the applicant raises the issue of the respondent being non-compliant with Tribunal Orders for the production of evidence and as a result, it should be disentitled from pursuing an order in this preliminary issue hearing in relation to an alleged non-compliance of the applicant. This issue will also be addressed as part of this preliminary issue hearing.
RESULT
6 For the reasons outlined above, I find that:
a. The respondent is not precluded from raising this preliminary hearing as there was no requirement for the respondent to provide productions to the applicant for this written hearing.
b. The applicant is entitled to dispute the denied benefits despite not providing information in a timely manner with the respondent’s s. 33 request for additional information; and,
c. The applicant is barred by virtue of section 55(1) 2. from commencing her Tribunal application to dispute the post-104 weeks IRB until she attends the IE assessments.
ANALYSIS
7 I will begin my analysis by discussing the respondent’s non-compliance with the Tribunal Orders to produce clinical notes and records of the IE assessors. I will then move on to discuss the duty of the applicant to provide information requested by the respondent and, lastly, move on to discuss the requirements of an applicant to attend an IE.
Respondent’s non-compliance with production orders
8 The applicant submits that the respondent is non-compliant with the Tribunal Orders dated November 23, 2018 and May 9, 2019 where the respondent was ordered to provide clinical notes and records of all IE assessors no later than August 2, 2019 and the applicant submits the respondent has not done so.
9 As a result, the applicant’s position is that the respondent’s non-compliance with two production orders should disentitle it from raising a preliminary issue hearing on the alleged non-compliance of the applicant.
10 The respondent submits that there were no production orders with respect to this preliminary issue hearing and the applicant could have raised the issue of non-compliance at the case conference but chose not to. Furthermore, the respondent advised the applicant that Dr. Weisleder did not have any clinical notes and records and Dr. Mor received an incomplete authorization from