Licence Appeal Tribunal
Released Date: 12/01/2020
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:
Tristan Gordon
Applicant
and
Royal & Sun Alliance
Respondent
DECISION AND ORDER
PANEL:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Nicholas Mester
Counsel
For the Respondent:
Paul Omeziri
Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant, ("T.G.") was involved in an automobile accident on July 2, 2017, when the motorcycle he was riding was stuck by an oncoming vehicle while he attempted a left turn through an intersection. T.G. sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule").1
2The respondent, ("RSA") took the position that T.G.'s impairment was predominantly minor and held him to treatment within the Minor Injury Guideline ("MIG").2 T.G. claimed certain benefits in excess of the $3,500.00 monetary limit in the MIG, which RSA denied. T.G. then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for a resolution of the dispute.
PRELIMINARY ISSUE
3RSA submits that T.G. failed to attend a properly requested Section 44 Insurer's Examination (IE). It seeks an order that T.G.'s application be dismissed pursuant to s. 55(1) of the Schedule.
4If RSA is correct, T.G. would be statute-barred from proceeding, which would dispose of his application. As such, I must consider this issue before turning to the substantive issues in dispute.
SUBSTANTIVE ISSUES IN DISPUTE
5The following substantive issues are in dispute:
i. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
ii. Is the applicant entitled to $1,482.50 for physiotherapy treatment, recommended by Mississauga Active Physiotherapy Services in a treatment plan (OCF-18) dated February 12, 2018?
iii. Is the applicant entitled to $1,339.00 for chiropractic treatment, recommended by Mississauga Active Physiotherapy Services in a treatment plan dated November 21, 2017?
iv. Is the applicant entitled to $5,896.90 for chiropractic treatment, recommended by Mississauga Active Physiotherapy Services in a treatment plan (OCF-18) dated October 26, 2017?
v. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6T.G. failed to attend a properly-requested IE. Pursuant to s. 55(1) of the Schedule, he is barred from proceeding before the Tribunal. T.G. has not provided a valid reason for failing to attend the IE, and in the circumstances, I am not inclined to exercise my discretion under s. 55(2) of the Schedule to permit his application to proceed.
7Since I have found that T.G. is statute-barred from proceeding before this Tribunal, I do not have jurisdiction to decide the substantive issues in dispute. T.G.'s application is dismissed.
ANALYSIS
8After the accident, RSA paid medical and rehabilitation benefits totalling $3,299.56.3 Based on its review of the available medical evidence, RSA determined that T.G.'s injuries were predominantly minor and subject to treatment within the MIG.
9T.G. then submitted Treatment and Assessment Plans (OCF-18s) exceeding the $3,500.00 limit for the treatment of minor injuries set out in s. 18(1) of the Schedule. RSA denied the plans and advised of its intention request an IE to determine whether T.G.'s injuries were predominantly minor. It sent a letter accompanied by Notices of Examination (NOEs) setting out the reasons for its request and the details of the requested examinations.4 RSA requested in-person IEs with a psychologist and a general practitioner and a concurrent paper review to be conducted by the general practitioner.
10In response to the notices, T.G.'s counsel sent a letter to RSA objecting to the IEs and advising of his refusal to attend the scheduled IEs because he felt that the MIG issue could be determined by a paper review; his attendance was not reasonable and necessary; and because RSA had determined his injuries to fall within the MIG and under s. 44(3)(a) of the Schedule, an insurer may not request an IE in relation to a benefit payable within the MIG.5 The in-person GP IE was scheduled for January 25, 2018. T.G. did not attend.6 As a result, RSA held T.G. to treatment within the MIG, and advised him that it would not approve any further treatment.
11Section 44(3)(a) does not state that an IE cannot address the issue of a MIG determination. Moreover, the benefits in dispute were not payable within the MIG. They would have exceeded the funding available for the treatment of minor injuries under s. 18(1) of the Schedule. RSA only requested an IE once T.G. proposed treatment above the $3,500.00 monetary cap. It was reasonable for RSA to request an IE to determine whether T.G.'s injuries were not minor. An inquiry into whether an insured person's alleged impairments fall within the MIG is a clear prerequisite to determining whether disputed benefits are reasonable and necessary.
12Section 44(5) sets out the notice requirements that insurers must meet when requesting an IE to determine an insured person's eligibility for a benefit, including the medical and any other reasons for the examination.
13The Tribunal has held that the phrase "medical and any other reasons" in s. 44(5)(a) requires an insurer to provide reasons that are clear enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.7
14The NOEs RSA provided to T.G. satisfied the requirements of s. 44(5). They clearly stated the medical and other reasons for the examination: to determine whether T.G.'s injuries were predominantly minor. This explanation was clear enough to allow T.G. to make an informed decision to pursue his claims and attend the IE, or to accept the denial of benefits.
15RSA's notice satisfied the requirements of s. 44(5). There is no dispute between the parties that T.G. failed to attend the IE in issue. T.G. is subject to the restriction on proceedings in s. 55(1) of the Schedule because of his non-compliance with the notice.
16In reply, T.G. submits that he is willing to attend the IE if the Tribunal determines that it was reasonably necessary. He seeks a stay of proceedings in order to do so. He submits that it would be draconian to dismiss his application without allowing him to attend.
17I am not persuaded by T.G.'s submission that it would be draconian not to grant him a stay of proceedings to permit T.G. to attend the IE. In order to do so I would need to exercise my discretion under s. 55(2) of the Schedule, which grants the Tribunal the ability to permit an insured person to apply despite noncompliance with s. 44. T.G. has not provided a valid explanation for his non-attendance and in the circumstances, it would be inappropriate to permit his application to proceed.
18Since I have determined that T.G. is statute-barred from proceeding before this Tribunal, I have no jurisdiction to decide the substantive issues in dispute.
ORDER
19The current application is dismissed, and the Tribunal file is now closed.
20Nothing in this decision bars T.G. from pursuing his claims if the issues remain in dispute and he subsequently complies with the insurer's IE request.
Released: December 1, 2020
Theresa McGee
Vice-Chair
Footnotes
- Ontario Regulation 34/10.
- Superintendent's Guideline No. 01/14.
- Respondent's Brief, Tab 24: Benefits summary as of January 3, 2018.
- Respondent's Brief, Tab 9: Letter from RSA dated December 21, 2017.
- Respondent's Brief, Tab 10: Letter from T.G. to RSA dated January 17, 2018.
- Respondent's Brief, Tab 11: No-Show Memorandum dated January 26, 2018.
- M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) at para. 26.