Goncalves v. Wawanesa Insurance, 2021 CanLII 104415

Citation: Goncalves v. Wawanesa Insurance, 2021 ONLAT 20-013261/AABS

Released Date: 10/19/2021

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:

Alexandrinha Goncalves

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Antonio Azevedo, Counsel

For the Respondent:

Farid Mahdi, Counsel

HEARD: In Writing

OVERVIEW

1The applicant was involved in an automobile accident on July 13, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

2Preliminary Issue:

i. Is the applicant barred from proceeding with her claim for income replacement benefits (“IRB”) on the ground that the respondent provided the applicant with notice that it requires an examination under section 44 of the Schedule, but the applicant has not complied with that section?

RESULTS

3The applicant is barred from proceeding with her claim for IRB.

OVERVIEW

4The respondent advised the applicant by letter dated February 14, 2019 that it would need the opinion of an independent medical assessor to determine whether the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment, which is the test for entitlement under the Schedule.¹ Notices of Examinations with specified dates were enclosed with the letter. A blank Disability Certificate (OCF-3) was enclosed as well.

5At the time of the accident, the applicant was employed full-time as a general labourer at Maple Leaf Poultry factory. The applicant filed her application on November 11, 2020, dealing with the issue of the MIG and three treatment plans for chiropractic services. The applicant added the IRB issue at the case conference held on May 3, 2021.

6The applicant’s lawyers sent a letter to the respondent, dated March 8, 2019, requesting adjournments of the dates for the examinations.

7The applicant submitted the Election Form (OCF-10) to the respondent on September 4, 2018, electing an IRB benefit in the amount of $400.00 per week from September 1, 2018 to March 19, 2019. Via letter dated September 13, 2018, the respondent made a section 33 request for the applicant to provide her four-week paystubs prior to the accident and to have her employer complete the enclosed Employer’s Confirmation form (OCF-2).²

8The respondent asked the applicant on September 18, 2018 for the short-term disability statements (STD) that the applicant’s employer stated the applicant was entitled to in order to calculate the applicant’s IRB. Further requests for the STD statements were made on November 5, 2018, January 11, 2019 and February 19, 2019.³

9On February 14, 2019, the respondent wrote to the applicant with respect to the IRB, requiring the applicant to be examined under section 44 on April 9, 11 and 15, 2019. The notice stated that the section 44 examinations were required because of Dr. M. Furtado (DC) identified the applicant’s injuries in the July 18, 2018 Disability Certificate as Whiplash disassociated disorder (WA2) with musculoskeletal signs, sprain/strain of the thoracic spine and sprain/strain of the shoulder joint. The OCF-3 indicated that the applicant was substantially unable to perform the essential tasks of her pre-employment as result of these impairments.⁴

10On March 27, 2019, the applicant advised the respondent that the April 2019 examinations were unnecessary, as the applicant was working. The applicant also indicated that they would miss time from work, and this would be onerous.⁵ The respondent, by letter dated April 15, 2019, advised the respondent that she was no longer entitled to IRB as she had returned to her pre-accident work.

11The STD file was received by the respondent on May 21, 2021 and revealed that the applicant was denied STD benefits on December 19, 2018 and on January 31, 2019.⁶The applicant had received employment benefits (“EI”) for the maximum 15 weeks from December 17, 2017, to September 22, 2018.⁷

ANALYSIS

12I find that the applicant is barred from proceeding with her claim for income replacement benefits for the reasons set out below.

13Section 44 of the Schedule permits an insurer to have an insured examined by a regulated health professional that is reasonably necessary to assist the insurer to determine what benefits the insured may be entitled to. Section 44(9)2 of the Schedule requires the insurer to make reasonable efforts to schedule the examination for a day, time, and location that are convenient to the insured person.

14Section 55(1)(2) of the Schedule prohibits the insured from proceeding with any application, if the insured person fails to attend a section 44 examination when the insurer has provided the proper notice in accordance with the regulations. Section 55(2)(3) does allow the Tribunal to impose terms and conditions, on any permission granted under this section, to attend any examinations.

15Section 37(1)(b) of the Schedule relates to a determination of a continuing entitlement to a specified benefit and allows an insurer to request a section 44 examination, but not more often than is reasonably necessary.

16The applicant’s position is that:

a. The Tribunal can apply the equitable remedy of relief from forfeiture under section 55(2)(3) of the Schedule to allow the applicant to proceed with her application.

b. Section 44 examinations were not reasonably necessary and that, in any event, the respondent failed to take reasonable steps to schedule the examinations for a day, time, and location convenient to the applicant. Since the applicant was working, not missing work is an acceptable excuse for not attending an examination, making the respondent’s notice not in accordance with the Schedule.

c. As the applicant had returned to work, she was no longer entitled to IRB and the Schedule does not provide for a retroactive or retrospective examination.

d. The applicant argues that the applicant never complained of psychological or orthopaedic injuries so the notice for those assessments are not reasonable.

e. The respondent made no effort to reschedule the examinations.

17The respondent’s position is that the section 44 examinations are there to help the insurer fairly and properly assess claims. The respondent had set up examinations relating to the IRB issue: for a kinesiologist to look at functional capabilities and job site analysis, an orthopaedic surgeon to assess physical abilities and a psychologist to assess if there were any psychological issues. In the July 18, 2018 OCF-3, Dr. M. Furtado listed the applicant’s injuries as Whiplash disassociated disorder (WA2) with musculoskeletal signs, sprain/strain of the thoracic spine and sprain/strain of the shoulder joint. The OCF-3 indicated that the applicant was substantially unable to perform the essential tasks of her pre-employment.⁸ The respondent maintains it has the right to test the accuracy of the insured’s claims and to see if the applicant suffered from a substantial inability to perform the essential tasks of her employment, for the time frame she was claiming.⁹

18The respondent’s position is that since the applicant returned to work in March 2019, her current functionality would not demonstrate her true level of alleged impairment for the material time frame in 2018-2019. An insurer’s examination now would not yield accurate information. The respondent did offer two different dates for section 44 examinations shortly after the accident and the applicant’s reason for not attending was because she would miss work, which it submits is not a reasonable excuse for not attending. The respondent also questions why the applicant never submitted alternative dates for a further examination after the April dates it provided.

19I agree with the respondent’s position. Firstly, the accident occurred in May 2018. It would be now difficult to assess the applicant’s injuries from the time of the accident to the date that she went back to work. I agree that the respondent would be prejudiced now to have to try to assess any physical, psychological and vocational issues that might relate to IRB eligibility during the time frame that is relevant. The examinations requested by the respondent were closer to the accident date and would have yielded greater accuracy as to any physical, psychological and vocational issues relating to IRB eligibility. I therefore find for the above reasons, that it would be unfair now under Section 55(2)(3) to grant permission for the applicant to attend an examination, even with terms and conditions.

20I find that the respondent’s requests for examinations were made in good faith and for proper reasons, chiefly to assess the applicant for her eligibility for IRB benefits. The respondent tried to accommodate the applicant by adjourning the first examination date and setting another date in the future. I find that the applicant’s refusal to attend because she was working is not a valid reason to not attend proposed examinations. There is also no issue raised as to the adequacy of the notice for the examinations.

CONCLUSION

21For the reasons set out above, I find that the applicant is barred from proceeding with her claim for income replacement benefits by operation of s. 55 of the Schedule.

Footnotes

1. 1Letter dated February 14, 2019 from Respondent to Azevedo Nelson Tab O
2. 2Letter from Respondent to Applicant dated September 13, 2018 Tab L
3. 3Letters form Wawanesa to the applicant dared January 11, 2019 February 19, 2019 Tab N
4. 4Disability Certificate (OCF-3) prepared by Melanie Furtado dated July 17, 2018
5. 5Letter from Azevedo to Wawanesa dated March 27, 2019 Tab U
6. 6Letter from Sun Life Financial to the Applicant dated December 19, 2018 Tab X; Letter from Sun Life Financial to the Applicant dated January 31, 2019 Tab Y
7. 7Letter from the Employment Insurance Commission to the Applicant dated November 30, 2018. Tab Z
8. 8Disability Certificate (OCF-3) prepared by Melanie Furtado dated July 17, 2018
9. 9RS v Pafco Insurance Company, 2020 CanLII 27384 (ONLAT)