Released: March 3, 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:
K.W.
Applicant
and
Intact Insurance Company
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Sandeep Johal, Vice Chair
APPEARANCES:
For the Applicant: [K.W.], Self-represented
For the Respondent: O. Itse Ezomo, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on March 11, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for medical 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”).
3At the case conference, the respondent raised a preliminary issue that the applicant is barred from proceeding with her Tribunal application by virtue of s. 55(1) 2. of the Schedule because the applicant failed to attend at the respondent’s section 44 insurer examination (“IE”) requests.
ISSUES IN DISPUTE
Preliminary Issues
4The following preliminary issue will be addressed as part of this hearing:
(i) Pursuant to s. 55(1) of the Schedule, is the applicant precluded from proceeding with her application to the Tribunal for failing to attend section 44 Insurer Examinations scheduled by the respondent?
Substantive Issues
5The following are the substantive issues:
(i) Is the applicant entitled to a non-earner benefit “(NEB”) in the amount of $185.00 per week for the period of April 11, 2017 to date and ongoing?
(ii) Is the applicant entitled to a medical benefit in the amount of $3,988.62 for chiropractic treatment recommended by LV Rehabilitation Clinic Inc. in a treatment plan that was submitted on June 16, 2017, and denied by the respondent on June 28, 2017?
(iii) Is the applicant entitled to a medical benefit in the amount of $1,566.00 for assistive devices recommended by LV Rehabilitation Clinic Inc. in a treatment plan that was submitted on September 14, 2017, and denied by the respondent on April 3, 2018?
(iv) Is the applicant entitled to a medical benefit in the amount of $4,973.53 for psychological treatment recommended by LV Rehabilitation Clinic Inc. in a treatment plan that was submitted on May 7, 2018, and denied by the respondent on May 7, 2018?
(v) Is the applicant entitled to payment for the cost of examination in the amount of $1,995.33 for a psychological assessment, recommended by LV Rehabilitation Centre in a treatment plan dated June 23, 2017 and denied by the respondent on July 4, 2017?
(vi) Is the applicant entitled to interest on any overdue payment of benefits?
(vii) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
6According to the Tribunal orders of November 4, 2019 and April 16, 2020 the preliminary issue is to be heard first, before the substantive issues in dispute.
RESULT
7For the reasons outlined below, I find that the applicant is barred by virtue of section 55(1) 2. from proceeding with her Tribunal appeal application for the non-earner benefit and for the medical benefit in dispute for $1,566.00 for assistive devices, as a result of non-attendance with the respondent’s section 44 IE requests.
8The applicant’s claim for chiropractic treatment, psychological treatment and the psychological assessment are not barred by section 55 of the Schedule and can proceed.
ANALYSIS
Preliminary Issues
Requirement to participate in IEs
9The applicant is required to participate in IE assessments that are reasonably necessary and must provide a reasonable explanation for non-attendance.
10I find that the respondent’s request for the IE assessments for the NEB and the assistive devices treatment plan in the amount of $1,566.00 are reasonably necessary and the applicant did not provide a reasonable explanation for non-attendance.
11I make my finding weighing the evidence and the written submissions of the parties. I find that the respondent, on a balance of probabilities, which means, more likely than not, made reasonably necessary requests for IE examinations and the applicant did not attend and did not provide a reasonable explanation for her non-attendance.
12Section 44(1) of the Schedule governs the IE process for the purpose of assisting the insurer to determine if the applicant is or continues to be entitled to a benefit under the Schedule for which an application is made, but not more often than is reasonably necessary. The respondent may require an insured person to be examined under this section by one or more persons chosen by the respondent who are regulated health professionals or who have expertise in vocational rehabilitation.
13Section 44(5)(a) of the Schedule states that if the respondent requires an IE, it shall give the applicant a notice setting out the medical and any other reasons for the examination. In addition, that notice must include the name of the person conducting the examination, any regulated health profession they belong to, their title and designations, including specialization, as well as the day, time and location of the examination must also be set out in the notice.
14The onus to prove, on this preliminary issue of a section 44 non-attendance is on the respondent on a balance of probabilities and I find that the respondent has satisfied its onus for the following reasons.
Insurer examination request for the non-earner benefit (NEB) and assistive devices
15The respondent submits it sent an IE notice on May 3, 2017 for the applicant to attend a family physician assessment for the non earner benefit and an occupational therapist in-home assessment. The respondent submits the applicant attended the occupational therapist assessment, but she did not attend for the family physician assessment. The respondent rescheduled the family physician assessment to July 7, 2017.2
16On the rescheduled IE for July 7, 2017, the applicant also did not attend and based on correspondence received from the applicant’s former counsel, she was unable to attend due to severe pain, and as a result, the respondent rescheduled the IE again to February 20, 2018.3
17The applicant did not attend at the rescheduled IE on February 20, 2018 and the respondent wrote to the applicant to advise that the applicant was not entitled to a non earner benefit as she failed to attend the IE.4
18On May 1, 2018, the applicant’s former counsel wrote to the respondent advising that the applicant did not attend the February 20, 2018 IE assessment due to bad weather and asked for the IE to be rescheduled once again.
19The respondent rescheduled the IE for July 3, 2018; however, the applicant once again did not attend the rescheduled IE on July 3, 2018.5
20Upon a review of the IE notices, I find that they were in compliance with the Schedule as each notice sets out (1) the medical and other reasons for the assessment, (2) the name of the assessor, (3) the profession of the assessor, and (4) the date, time and location of the assessment that the applicant was required to attend.
21The applicant in her submissions does not take any issue with any of the notices as being improper or unclear. The applicant in her written submissions refers to an IE scheduled for April 17, 2020 however a copy of that notice was not provided by the applicant. The applicant further submits that as a result of the COVID-19 pandemic she was in quarantine and unable to attend on April 17, 2020. However, according to the respondent, there was no IE scheduled for the applicant to attend on that date.
22The applicant further submits her former counsel was removed as the counsel of record as of January 28, 2020 and she has been in the process of retaining new counsel.
23Despite the applicant’s submissions of being unable to attend on April 17, 2020 due to the COVID-19 pandemic, the applicant has not addressed the respondent’s submissions of her failure to attend the IE assessments scheduled in 2017 and 2018 as discussed above. For clarity, the assessments scheduled and re-scheduled that the respondent is referring to are outlined in the following table:
| Assessment | Notice of Examination Date | Date of Appointment |
|---|---|---|
| Physician Assessment | May 3, 2017 | May 26, 2017 |
| Physician Assessment | June 9, 2017 | July 7, 2017 |
| Occupational Medicine | September 28, 2017 | October 12, 2017 |
| Occupational Medicine | October 24, 2017 | November 3, 2017 |
| Occupational Medicine | December 5, 2017 | December 15, 2017 |
| Physician Assessment | February 1, 2018 | February 20, 2018 |
| Occupational Medicine | February 1, 2018 | February 20, 2018 |
| Occupational Medicine | June 25 and 29, 2018 | July 3, 2018 |
24The applicant attended the Occupational Therapist (In-Home) Assessment on May 27, 2017 with respect to one of the IE’s for the non earner benefit but she has not attended the physician assessment which was also scheduled to determine her eligibility and entitlement to the non earner benefit.
25The respondent further submits that as a result of section 37(7) of the Schedule, it may refuse to pay for the benefit during the period the applicant fails to attend the IE assessment.
26Section 55(1)2 of the Schedule bars the applicant from applying to the Tribunal for dispute resolution if the respondent requires an IE assessment and the applicant does not attend.
27Based on the submissions and the evidence submitted for this written hearing, I agree with the respondent. The applicant has not provided me with a reasonable explanation for her non-attendance for the eight scheduled and re-scheduled IE assessments as listed in the table at paragraph 23 above.
28The applicant is required to attend all reasonably necessary IE examinations. I find that the request for a family physician assessment is reasonably necessary in order for the respondent to determine whether the applicant has any impairments that would functionally limit her ability to complete her post-accident activities compared to her pre-accident activities. By not attending the reasonably necessary assessment, the applicant has precluded the respondent from adjusting her file to determine whether she is in fact entitled to a non earner benefit.
29Furthermore, the occupational medicine IE, would also be reasonably necessary in order to help the respondent determine if the assistive devices the applicant is seeking are reasonable and necessary. By not attending that IE assessment, the respondent is once again prevented from adjusting the applicant’s file and is prevented from helping it making that determination.
30As a result of the above, I find that the respondent has provided a proper notice in accordance with section 44. Because of the applicant’s failure to attend, she is precluded from disputing the non earner benefit and the assistive devices treatment plan in the amount of $1,566.00 in accordance with s. 55(1) 2. of the Schedule until such time as she attends the properly scheduled IE.
31The applicant made submissions on the substantive issues in dispute; however, according to the Tribunal Orders released on November 4, 2019 and April 16, 2020, this written hearing was only with respect to the preliminary issue of whether the applicant was entitled to proceed with her Tribunal application despite a section 44 IE non-attendance for the non earner benefit and assistive devices.
ORDER
32For the reasons outlined above, I find that the applicant is barred by virtue of section 55(1) 2. from disputing the non earner benefit and the treatment plan for assistive devices in the amount of $1,566.00 for non-compliance with a section 44 IE request. Therefore, the substantive issues listed in paragraph 5 and the applicant’s entitlement to those benefits will not be addressed as part of this hearing.
33As per the Tribunal Order released on April 16, 2020, the parties may contact the Tribunal within 30 days of the release of this decision to schedule a case conference for the following substantive issues in dispute:
a. Is the applicant entitled to a medical benefit in the amount of $3,988.62 for chiropractic treatment recommended by LV Rehabilitation Clinic Inc. in a treatment plan that was submitted on June 16, 2017, and denied by the respondent on June 28, 2017?
b. Is the applicant entitled to a medical benefit in the amount of $4,973.53 for psychological treatment recommended by LV Rehabilitation Clinic Inc. in a treatment plan that was submitted on May 7, 2018, and denied by the respondent on May 7, 2018?
c. Is the applicant entitled to payments for the cost of examinations in the amount of $1,995.33 for a psychological assessment, recommended by LV Rehabilitation Centre in a treatment plan dated June 23, 2017 and denied by the respondent on July 4, 2017?
d. Is the applicant entitled to interest on any overdue payment of benefits?
e. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
Date of Issue: March 3, 2021
_______________________
Sandeep Johal
Vice Chair
Footnotes
- O. Reg. 34/10.
- Preliminary Issue Submissions of the Respondent at Tab 3. Letter dated June 9, 2017.
- Preliminary Issue Submissions of the Respondent at Tab 5. Letter dated February 1, 2018
- Preliminary Issue Submissions of the Respondent at Tab 6. Letter dated March 28, 2018.
- Preliminary Issue Submissions of the Respondent at Tabs 8 and 9. Letters dated June 29, 2018 and August 21, 2018.