Amoh v. Pembridge Insurance, 2021 CanLII 76587

Amoh v. Pembridge Insurance

Citation: Amoh v. Pembridge Insurance, 2021 ONLAT 20-001280/AABS

Release date: 08/17/2021

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:

Rockson Amoh Applicant

and

Pembridge Insurance Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Piera A Segreto, Counsel

For the Respondent: Timothea Leung, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rockson Amoh, (“the Applicant”), was injured in an automobile accident on December 29, 2016 and sought benefits from the Pembridge Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The Respondent refused to pay for certain benefits, and in response, the Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

2The Respondent raised a preliminary issue in response to the Application. The preliminary issue is the subject of this hearing.

PRELIMINARY ISSUE

1. Is the Applicant barred from commencing a proceeding because he failed to comply with section 44 of the Schedule by not attending insurer’s examinations (“IEs”)?

RESULT

3The Applicant is barred from commencing this proceeding pursuant to section 55 of the Schedule because he failed to attend properly scheduled IEs.

BACKGROUND

4The Applicant was the driver of a vehicle that was struck from behind while travelling on an urban street. He sustained strains to his neck, shoulders, and back as a result of the accident. Documents indicate that he was unable to perform his essential tasks of self-employment due to accident-related injuries, starting December 29, 2016. After receiving this information and consulting with an accountant, the Respondent paid Income Replacement Benefits (“IRBs”) to the Applicant.

5On June 8, 2017, the Respondent wrote to the Applicant and advised that three IEs were being scheduled to address IRBs and Medical and Rehabilitation benefits. The notice for one IE was ambiguous. That IE was scheduled to take place at 12:00 a.m. on the same day it was issued. It also advised the Applicant that he was required to attend the examination, however, the location of the examination said, “not required to attend”. The two other notices given to the Applicant under the same cover letter were clear. Those notices were for IEs on July 4, 2017 at 11:30 a.m. and July 13, 2017 at 12:00 p.m. The latter notices advise the Applicant that he is required to attend the examination, and both give a specific location for the examination.

6The Applicant never attended the IEs. On June 26, 2017, the Respondent wrote to the Applicant, confirmed that he did not attend the IEs, and noted that the IEs would be rescheduled. New IE notices were issued on July 28, 2017, for examinations on August 17 and 24, 2017. The two notices advised the Applicant that he was required to attend those IEs.

7On July 28, 2017, the Applicant advised the Respondent that he returned to work on July 10, 2017. The Respondent replied on August 1, 2017 and confirmed that the Applicant’s IRBs would cease, effective July 10, 2017. The same letter also stated that “No action is required on your part unless you wish to dispute our stoppage of your Income Replacement Benefit.” No action occurred and the Applicant never attended an IE and never sought to reschedule any of them.

8The Applicant now claims entitlement to IRBs for the period from July 10, 2017 to December 29, 2018. The Respondent submits that the Applicant is barred from proceeding with his Application pursuant to section 55 of the Schedule because he failed to attend the August 2017 IEs.

THE LAW

9Section 44 of the Schedule provides that the Respondent may have a regulated health professional examine the Applicant during an IE. To exercise this option, the Respondent is required to satisfy the notice requirements in section 44(5) of the Schedule. For example, the Respondent is required to provide the Applicant with the medical and any other reasons for the IE. It is also required to make reasonable efforts to schedule the IE for a day, time, and location that are convenient for the Applicant. The Respondent is not permitted to conduct an IE more than “reasonably necessary”.

10Section 55(1)2 of the Schedule provides that the Applicant is barred from filing an Application if he has failed to attend a properly scheduled IE. However, pursuant to section 55(2) of the Schedule, the Applicant may still proceed with the Application if permitted by the Tribunal. Section 55(3) provides that the Tribunal may impose terms and conditions on such permission.

THE POSITIONS

11The Respondent submits that the language in section 55 of the Schedule is mandatory and the Applicant should be barred from proceeding with this Application. It maintains that the June 8, 2017 notice is satisfactory but submits that, at a minimum, the July 28, 2017 notice is compliant with the Schedule.

12The Applicant submits that the June 8, 2017 notice was confusing in that it was unclear whether the Applicant was required to attend at an IE that day. Further, the Applicant submits that the Respondent failed to make reasonable efforts to schedule the IEs for a day, time, and location that are convenient for the Applicant.

13The Respondent submits that the Applicant has never given a reasonable explanation for failing to attend the IEs. It highlights that the Applicant never asserted that he was not required to attend the IEs or that they are not reasonably necessary.

ANALYSIS

14I find that the Applicant has failed to attend properly scheduled IEs. He provides no reasonable excuse for missing the examinations and, for that reason, I choose not to exercise my discretion to permit his application.

15The Respondent’s July 28, 2017 notice met the requirements in section 44 of the Schedule. I agree with the Applicant that the June 8, 2017 notice is ambiguous and that his non-attendance at the July 2017 IEs is reasonable. However, the July 28, 2017 notice for the August 2017 IEs is unambiguous and compliant with the Schedule. Thus, the Applicant is required to attend the examination.

16The Respondent made reasonable efforts to schedule the August 2017 IEs for a day, time and location that is convenient for the Applicant. According to the Applicant, the August 2017 IEs were inconveniently scheduled because the Respondent never contacted him in advance to arrange a mutually agreeable time for the IE. The Respondent is not required to contact the Applicant in advance of scheduling or rescheduling IEs. To me, the Applicant’s non-attendance at the IEs is the only thing that suggests that the IEs were scheduled inconveniently. The fact that the Respondent rescheduled the July 2017 IEs is evidence that it made reasonable efforts to schedule the IEs for a day, time, and location that is convenient to the Applicant.

17The Applicant made no effort to notify the Respondent that the timing of the IEs was inconvenient. He retained counsel on August 23, 2017 and his counsel received copies of his AB file on September 5, 2017 and again on February 20, 2020. Despite having retained counsel for more than two years, the Applicant made no effort to notify the Respondent that the timing of the IEs was inconvenient or request that they be rescheduled.

18The Respondent is not barred from scheduling IEs following the Applicant’s return to work. Aside from the IE notice requirements, the only other caveat imposed by the Schedule is that IEs can be conducted “not more often than is reasonably necessary.” The Schedule is silent on whether the Applicant’s return to work bars the Respondent from conducting an IE. However, the Respondent’s IE request here is reasonable considering that the Applicant may return to self-employment without affecting his entitlement to resume receiving IRBs, pursuant to section 11 of the Schedule. The IE request is further justified considering that the Applicant claims entitlement to IRBs for a period immediately following the date which he previously reported to have returned to work, according to the July 28, 2017 letter.

19The Applicant may not proceed with his Application because the prejudice to the Respondent cannot be cured. The Applicant claims entitlement to IRBs for the period from July 10, 2017 to December 29, 2018 and his non-attendance at the IEs leaves the Respondent with no independent medical opinion. The Respondent is prejudiced because it was never able to conduct an IE contemporaneous with the period for which the Applicant claims entitlement to IRBs. Generally, prejudice like this is remedied by adjourning the hearing to permit the Applicant to attend the IE(s). However, this cannot be done for this matter because it is now more than two-and-a-half years beyond the end of the Applicant’s IRB claim. Any medical opinion obtained now will not be contemporaneous with the period for which the Applicant claims entitlement.

CONCLUSION AND ORDER

20The Applicant never attended properly scheduled IEs and provides no reasonable excuse for missing the examinations. The Respondent is prejudiced by the Applicant’s failure to attend the IEs. The prejudice cannot be remedied by rescheduling IEs now, considering that the period for which the Applicant claims entitlement to IRBs ended more than two-and-a-half years ago.

21The Applicant is barred from proceeding with his Application pursuant to section 55 of the Schedule because he failed to attend properly scheduled IEs. Considering the substantial delay and prejudice to the Respondent, I choose not to exercise my discretion under section 55(2) to permit the Application.

22The Application is dismissed.