Release date: 08/06/2021
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:
Radomir Acamovic
Applicant
and
Cayuga Mutual Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Paul Barrafato, Counsel
For the Respondent:
Gerry George, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, Radomir Acamovic, was involved in an automobile accident on November 19, 2017, and sought benefits from the respondent, Cayuga Mutual Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule").
2The respondent denied certain benefits claimed by the applicant. The applicant applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute. The respondent raises a preliminary issue that would dispose of one of the substantive issues in dispute. This hearing is to consider that issue.
PRELIMINARY ISSUE
3The issue to be decided in the hearing is:
a. Is the applicant barred from proceeding to a hearing for an income replacement benefit because he failed to attend an insurer's examination?
RESULT
4The applicant is not barred from proceeding to a hearing on the income replacement benefit issue. Although he failed to attend three insurer's examinations, those examinations were not requested in accordance with s. 44 of the Schedule. The procedural bar in s. 55 of the Schedule therefore does not apply.
ANALYSIS
5The respondent submits that the applicant failed to attend three insurer's examinations to determine his ongoing entitlement to an income replacement benefit. It submits that the notice of examination complied with s. 44 of the Schedule, that the applicant failed to attend, and that he failed to provide a reasonable explanation for his non-attendance. Consequently, the respondent submits, the applicant should be barred from proceeding to a hearing for his income replacement benefit claim.
6The applicant submits that the respondent's requests failed to satisfy the requirement under s. 44(1) of the Schedule that insurer's examinations not be requested more often than is reasonably necessary. He submits that just two months prior to the requests in issue, he attended three insurer's examinations with the exact same assessors. The applicant submits that it was unreasonable for the respondent to request a second set of in-person examinations so soon after the first when the respondent could easily have asked its assessors to address the income replacement benefit issue during the first round of examinations. The applicant further submits that the reasons for the request fail to satisfy the requirement under s. 44(5) to provide "medical and any other reasons", because the notices merely stated that the respondent wished to determine the applicant's ongoing entitlement to the income replacement benefit.
7I find that the respondent requested insurer's examinations more often than was reasonably necessary. The applicant attended insurer's examinations on February 12, 2018 (with an orthopedic surgeon), March 9, 2018 (with a physiatrist), and March 22, 2018 (with a neurologist). It was unreasonable to request that the applicant attend a second set of in-person examinations on May 25, May 31, and June 1, 2018 with the same assessors. The respondent has made no submissions that a material change in the applicant's physical or mental condition occurred in the intervening time. Instead, the respondent submits that on April 16, 2018, it received information that the applicant had returned to work, and that this necessitated a second round of in-person examinations.
8I am not persuaded by the respondent's submissions. A change in the applicant's employment status might reasonably have prompted the respondent to request more information from the applicant, as it did on April 16, 2018 when it requested that the applicant submit an OCF-13 declaring any post-accident income. But there is no rational connection between a suspected change in employment status and an entirely new round of physical examinations. I find that the requested examinations were duplicative, redundant, unnecessary and unreasonable.
9In light of this finding, the reasonableness of the applicant's explanation for failing to attend the disputed examinations is moot, as is the length of time it took him to furnish that explanation. It is also unnecessary for me to consider whether the reason the respondent provided for the requests satisfied the "medical and any other reasons" requirement in s. 44(5). The requests failed to satisfy the requirements of s. 44(1). For the purposes of the preliminary issue, the analysis ends there.
10I note that it is also unnecessary for me to address the issues raised in the parties' submissions as to the validity of the denials issued by the respondent and the applicant's failure to comply with its request to submit an OCF-13. These issues are not before me and are properly the subject of a full hearing of the substantive issues.
CONCLUSION AND ORDER
11The applicant is permitted to proceed to a hearing on the income replacement benefit issue. The s. 55 bar does not apply. The requests for the examinations were not made in accordance with s. 44 of the Schedule.
12Within 30 days of the release of this decision, the parties shall contact the Tribunal to request a case conference resumption to explore the possibility of settlement and to discuss any procedural arrangements that may be necessary for the substantive issue hearing.
13If the parties resolve the issue in dispute, they shall notify the Tribunal in writing immediately.
Date of Issue: August 6, 2021
Theresa McGee, Vice-Chair