Citation: Scheltgen v. TD Insurance Meloche Monnex, 2021 ONLAT 20-010604/AABS

Licence Appeal Tribunal File Number: 20-010604/AABS

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:

Justice Scheltgen

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

David J. Medcalf, Counsel

For the Respondent:

Michelle Hatzikonstadinou, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant was involved in an automobile accident on April 28, 2019, and sought benefits, including an income replacement benefit (“IRB”) from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). TD scheduled a s. 44 Insurer’s Examination (“IE”) to assess the applicant’s claim. The applicant did not attend, and TD stopped payment. The applicant applied to the Tribunal for resolution of the dispute and TD raised the preliminary issue giving rise to this hearing.

PRELIMINARY ISSUE

2The issue in dispute is as follows:

i. Pursuant to s. 55 of the Schedule, is the applicant barred from proceeding with his application for IRB because he failed to attend the IE under s. 44?

RESULT

3The applicant is statute-barred from proceeding with his application under s. 55(1)2 because he failed to attend a properly scheduled s. 44 IE.

ANALYSIS

Section 55

4Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44 but the insured person has not complied with their attendance. Section 44 provides that an insurer may require an insured person to be examined to assess entitlement to a benefit but not more than is reasonably necessary. A notice under s. 44(5) must state the medical and any other reason for the examination, whether the insured’s attendance is required, the name, title and designation of the person conducting the IE and the date, time, and location of same.

The IRB claim

5TD initially paid the applicant an IRB post-accident and has paid $24,021.68 to date. At TD’s request, the applicant submitted a new OCF-3 dated January 16, 2020, which indicated he remained substantially unable to perform the essential tasks of his pre-accident employment as a labourer. By way of letter dated January 20, 2020, TD advised it was arranging s. 44 IE’s to determine ongoing entitlement to IRB. IE’s were scheduled and then cancelled due to the pandemic. TD then advised the applicant that the IEs were rescheduled for June 23, July 9 and July 20, 2020 with the June IE rescheduled again for August 5, 2020.

6There is no dispute that the applicant failed to attend the IEs scheduled for July 9, 2020 and July 20, 2020 and that same were rescheduled. On August 18, 2020, the applicant advised TD that he would be unable to attend any IEs until April 2021 as he would be away playing competitive hockey in Florida. TD advised that the applicant would be placed in non-compliance, and it requested a new OCF-3 to support his ongoing inability to work. The applicant’s IRB stoppage date was August 20, 2020.

Positions of the parties

7In his affidavit sworn March 8, 2021, the applicant deposed that he returned to his hockey team in Florida on August 25, 2020. He further deposed that it would have been difficult to return to Ontario to attend IE’s due to the 14-day quarantine required for Canadian citizens re-entering the country during the pandemic and that he would not have been allowed to remain on his hockey team if he had left for such a prolonged period of time. In good faith, TD accommodated the applicant's hockey schedule and scheduled post-104-week IRB IE’s for April 26, May 6, May 13, and May 31, 2021. The applicant attended all of the IE’s, with the exception of the May 31, 2021 orthopaedic assessment, as the applicant left for Erie, Pennsylvania a few days prior to the IE to continue playing hockey. IRB payments resumed on April 26, 2021 after the applicant attended his first IE but were stopped again on June 20, 2021 for non-attendance at the orthopaedic IE.

8Section 37(8) of the Schedule requires an insurer to resume payment of a specified benefit if an insured person provides a "reasonable explanation" for not complying with s. 44(9), which requires an insured to submit to all reasonably necessary IE’s. TD submits that the applicant should be statute-barred from proceeding with his application for failing to provide a reasonable explanation for not attending the properly scheduled s. 44 IE. It submits that the applicant’s offer to be examined by a US-based medical practitioner is not permitted by the Schedule, that the applicant stated at his examination under oath that it was his choice to return to Erie mere days before the May 31, 2021 IE and that, to date, he has failed to provide evidence of his travel to justify his absence from the IE.

9In response, the applicant cites the consumer protection nature of the Schedule to assert that his explanation for non-attendance was reasonable and that he remains willing to attend the IE. He submits that he advised TD on May 27, 2021 that he was required on short notice to return to the United States for a hockey opportunity. The applicant submits that he indicated that he would be willing to attend an IE in Erie where he was then located, just as he had previously offered to attend an IE with a Florida-based physician, or, alternatively, a virtual assessment, during the pandemic. The applicant argues that TD did not make reasonable efforts to schedule the IE’s at a location that was convenient for him, pursuant to s. 44(9)2i and that where the window for his hockey career was closing, it was incumbent on TD to arrange the IE’s so that he was not made to choose between an IRB and his rehabilitation program and career.

The applicant’s explanation is not reasonable

10As a threshold issue, the parties seem to agree that the notices of the IE provided to the applicant meet the requirements under the Schedule and the applicant also does not argue that the IE in question was not reasonably necessary. Further, the applicant did not advise TD of any deficiencies or missing information, so the dispute turns on whether the applicant’s excuse for non-attendance at the IE is a reasonable one.

11While the applicant is correct that the Schedule is consumer-protection legislation, the applicant’s offer to attend at a US-based practitioner’s office is an empty gesture that does not mitigate his non-attendance at the May 31, 2021 IE. As TD submits, s. 44(1) requires that assessors chosen by an insurer to conduct an IE shall be a “regulated health professional,” which is defined in s. 3, inter alia, as a “profession governed by a College as defined in the Regulated Health Professions Act, 1991,” which is Ontario legislation that governs the colleges of regulated health professionals in the province. I agree that the Schedule clearly requires that s. 44 IE’s be performed by health professionals regulated by professional Colleges in Ontario.

12In a similar vein, the insurer has a right to conduct an in-person IE to fairly assess a claim for benefits and to provide it with an opportunity to make a full response, so long as the IE’s are not conducted more than are reasonably necessary. The applicant was continuing to claim IRB—indicating he had a substantial inability to complete the essential physical duties of his previous job as a labourer—all while he was away in the United States playing competitive hockey. On these facts, and as the missed IE was for an orthopaedic assessment to assess his physical capabilities—chiefly from a tibia fracture and ACL and PCL knee injuries—I agree that it would not be reasonable to conduct this assessment virtually, as the applicant suggests. In any case, it was within TD’s rights under the Schedule to insist that the IE take place in person, and I find this is especially so where the applicant was continuing to play competitive hockey while claiming an IRB.

13I also find it cannot be said that TD did not accommodate the applicant, as the applicant brazenly alleges in his submissions. Rather, after the applicant missed the first slate of IE’s on the basis that he did not update his mailing address and/or was simply not available for a significant period of eight months, TD took the applicant at his word that he would attend the rescheduled IE’s in April 2021 after the hockey season was complete. TD then accommodated the applicant by working around his hockey season and scheduling the post-104-week IRB IE’s for April 26, May 6, May 13, and May 31, 2021 upon his return to Ontario. This was prejudicial to TD, as it was robbed of the ability to procure timely, contemporaneous medical opinions. While the applicant attended for the first three IE’s in April and May 2021, he then departed Ontario again before he satisfied his obligation to attend the fourth IE scheduled for May 31, 2021, which runs contrary to his claim, on which TD relied, that he was ready and willing to attend.

14In submissions, the applicant asserts that his non-attendance at the fourth IE was reasonable because on May 27, 2021, his counsel wrote to TD and advised that the applicant was required to return for a hockey opportunity on short notice and that as such, he would not be available to attend the May 31, 2021 IE. However, as TD submits, at his examination under oath on June 3, 2021, the applicant was specifically asked why he left when he did—just prior to the May 31, 2021 IE that he had indicated he would attend—and whether he was specifically told to be back in Erie by a certain date. The applicant deposed that he returned to Erie because he could not train in Ontario and that it was his choice to return to Erie when he did. Again, TD initially requested the s. 44 IE’s in January 2020. The applicant did not attend for any assessments until April and May 2021 and only after TD rescheduled the IE’s on two occasions to accommodate him. The applicant then departed Ontario by choice before attending the final IE.

15As a result, I find the applicant’s decision not to attend the IE was not a reasonable one, as it was the applicant’s choice to leave the country mere days before he was required to attend an IE that was scheduled to accommodate his career and his claim for an IRB. Given the significant delay in getting the applicant to attend s. 44 IE’s that were originally scheduled in the summer of 2020, I agree with TD that the applicant’s choice to leave Ontario on his own accord mere days prior to fulfilling the last of his s. 44 obligations is not a reasonable explanation for non-attendance.

16Lastly, I would also not give effect to the applicant’s argument that TD somehow bears the burden of demonstrating “why an alternative to in-person Ontario assessments is not possible.” Putting aside that I have already determined that TD attempted to accommodate the applicant and that s. 44 assessments must be conducted by Ontario practitioners, it is well-settled that the burden lies with the applicant to prove that his non-attendance at an IE was reasonable or, in the alternative, that an IE was not reasonably necessary.

17For these reasons, I find that TD’s IE request was reasonably necessary to assess the applicant’s IRB claim and that its notices were proper under the Schedule. Where the applicant failed to attend the IE scheduled for May 31, 2021 and has not provided a reasonable explanation for his non-attendance, it follows that he is statute-barred from proceeding with his claim under s. 55(1)2.

Section 55(2) and (3)

18The applicant urged the Tribunal to utilize the discretion afforded to it under s. 55(2) if it determined that the applicant was non-compliant under s. 55(1)2. Section 55(2) provides that the Tribunal may permit an insured person to proceed with their application despite being statute-barred under s. 55(1)2 and, pursuant to s. 55(3), may impose terms and conditions on a permission granted. While the applicant failed to provide specific suggestions on potential terms and conditions that the Tribunal could apply, I find it would not be appropriate to allow the applicant to proceed with his application under s. 55(2) where TD has not been provided the opportunity to fully or contemporaneously assess his claim due to his failure to attend the remaining IE.

ORDEr

19The applicant is statute-barred from proceeding with his IRB claim under s. 55(1)2 as he failed to attend a properly scheduled s. 44 IE.