Munar v. Aviva Insurance Canada, 2022 CanLII 106456

Citation: Munar v. Aviva Insurance Canada, 2022ONLAT 20-000613/AABS

Licence Appeal Tribunal File Number: 20-000613/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:

Millicent Munar

Applicant

and

Aviva Insurance Canada

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Tina D Radimisis, Counsel

For the Respondent: Catherine Zingg, Counsel

HEARD: By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on July 19, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”)¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUES

2The Tribunal added the following preliminary issue to the issues in dispute via the Motion Order² of Adjudicator Mazerolle:

i. Is the applicant prohibited from proceeding with her application at the Tribunal due to her alleged non-attendance at scheduled insurer’s assessments, pursuant to section 55 of the Schedule?

SUBSTANTIVE ISSUES

3The following substantive issues are to be decided by the Tribunal:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week for the period May 30, 2018, and to date and ongoing?

ii. Is the applicant entitled to a medical benefit in the amount of $2,411.16 for active therapy and massage therapy, denied March 15, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $1,079.75 for goods and services recommended by Promed Rehabilitation Clinic, denied, May 18, 2018?

iv. Is the applicant entitled to the following costs of assessments:

a. $2,485.00 for a home/attendant care assessment, denied May 8, 2019?

b. $598.44 for a psychological assessment: driver reintegration, denied February 5, 2018?

c. $2,200.00 for psychological assessment, denied January 24, 2018?

v. Is the applicant entitled to interest on any overdue payment of benefits?

vi. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

PRELIMINARY ISSUE LAW

4Section 36(3) of the Schedule states an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.

5Section 44(1) of the Schedule states that in order to help an insurer determine if an insured person is, or continues to be, entitled to a benefit that the insured person applied for under the Schedule, but not more than is reasonably necessary, the insurer may require the insured person to be examined by one or more people, chosen by the insurer, who are regulated health professionals or who have expertise in vocational rehabilitation.

6Section 55(1)2 of the Schedule states that an insured person shall not apply to the Tribunal under subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, if the insurer has provided the insured person with notice it requires an examination under section 44, but the insured person has not complied.

7Section 55(2) of the Schedule states that the Tribunal may permit an insured person to apply despite section 55(1)2 of the Schedule.

PRELIMINARY ISSUE ANALYSIS

8The respondent submitted that the applicant should be barred from proceeding with her application before the Tribunal, as she failed to attend Insurer Examinations (“IE”s) to address the post-104 week (“post-104”) income replacement benefit (“IRB”) issue.

9The respondent submitted that the applicant’s IRB was suspended³ as of October 3, 2019, due to her non-compliance with section 44 of the Schedule.

10The respondent noted that the applicant’s IRB was also suspended for failing to provide an updated Disability Certificate (“OCF-3”), pursuant to section 33(6) of the Schedule.

11The respondent provided the following timeline of issues with the applicant’s attendance at IEs:

• The applicant was scheduled⁴ to attend an IE in February of 2018 to address an OCF-18 for a Functional Abilities Evaluation (“FAE”) in the amount of $1,440.92, which is currently not before the Tribunal.

• The respondent received notice from its assessor⁵ that the applicant did not attend the IE to address the disputed OCF-18 for an FAE, which was scheduled with Dr. Alborz Oshidari, physical medicine and rehabilitation specialist, scheduled for February 2, 2018.

• A second IE was scheduled with Dr. Oshidari for March 16, 2018⁶, which the applicant did not attend.

• A subsequent Notice of Examination⁷ was sent to the applicant to address the OCF-18 for the FAE and a new OCF-18 for an attendant care assessment in the amount of $1,696.25.

• The respondent contacted the applicant⁸ to inform her that because she failed to provide an updated OCF-3 as requested for May 30, 2018, her IRB benefit was suspended as of May 30, 2018.

• The respondent sent the applicant another Notice of Examination⁹ to assess the applicant’s entitlement to an IRB with Dr. Oshidari, scheduled for September 21, 2018, which the applicant did not attend.

• The respondent sent the applicant a subsequent Notice of Examination¹⁰ to address the applicant’s entitlement to an IRB and scheduled several IEs including a physiatry assessment with Dr. Oshidari on July 12, 2019, and a FAE with Dawn Rynberk, kinesiologist on July 17, 2019.

• The respondent wrote the applicant¹¹, acknowledging it had received a request to reschedule the IEs scheduled for July 12 and 17, 2019 due to the applicant having childcare issues. The letter notified the applicant that should she failed to attend the IEs scheduled for July 2019, her benefits would be suspended.

• On September 23, 2019, the respondent notified¹² the applicant of the many issues it was having scheduling IEs for the applicant to address her entitlement to an IRB. The respondent notified the applicant that her IRB would be suspended on October 3, 2019, because she failed to attend her IEs and that the respondent was requesting a payment in the amount of $580.00 due to the applicant’s non-attendance at her physiatry assessment, which would only be rescheduled after payment.

12The respondent submitted that as of the date of the hearing, the applicant has not made herself available for a physiatry or FAE examinations, despite all of the above.

13The respondent submitted that all of its IEs were properly scheduled and subject to the requirements of notice pursuant to the Schedule.

14The respondent submitted that it would be unfair to proceed with the subject matter without affording the respondent the opportunity to complete its IEs.

15The respondent relied on the matter of R.T. v. COSECO Insurance Company¹³, where the Tribunal found that applicants are required to attend IEs and are barred from proceeding with their applications until they comply.

16The respondent submitted that the applicant has not provided what it would describe as a “reasonable excuse” for not attending the IEs; the respondent submitted that given the above history and its many attempts to accommodate the applicant, the Tribunal should not allow the application to proceed given the extensive delay and the fact that the prejudice cannot be remedied by having the applicant simply attend the IEs.

17The respondent also relied on the matter of Amoh v Pembridge Insurance¹⁴, where the Tribunal determined that as the applicant failed to attend the IEs and provided no reasonable excuse for such, the respondent was prejudiced in such a way that cannot be remedied by rescheduling the pending IEs due to the IRB period ending over 2.5 years ago, and therefore, the applicant was barred from proceeding with his application.

18The applicant did not make any submissions with respect to the preliminary issue.

19After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant may not proceed with her application, as she failed to attend the IEs required by the respondent.

20The respondent provided what I would describe as a clear picture, supported by evidence, that it made numerous attempts to schedule, reschedule and accommodate the applicant throughout the IE process.

21Though the applicant did not specifically raise this issue, after reviewing the respondent’s evidence, I noted that each of the IEs requested was reasonable and necessary to address the applicant’s injuries, requested OCF-18s and entitled to the IRB. After reviewing the IE notices, I also find that all IE notices sent to the applicant were valid.

22Since the applicant chose not to make preliminary submissions with respect to this issue, I was not provided with information as to why the applicant has failed to attend her numerous IEs in 2018 and 2019. This is despite being a requirement under section 44 of the Schedule.

23I was also not given any information as to why the applicant failed to provide an updated OCF-3, as required by section 33(6) the Schedule.

24I also agreed with the respondent’s submission that it would not only be procedurally unfair to go forward with this application without the applicant attending the required IEs, but also be inconsistent with section 55(1)2 of the Schedule, as supported by R.T. v. COSECO Insurance Company. I found this matter to be persuasive, as it dealt with a very similar subject matter.

25I also agreed with the respondent’s arguments that the applicant has not provided a reasonable excuse for failing to attend the IEs.

26With respect to the respondent’s request that the applicant be barred from proceeding with her application, I agree that given the extensive delays, remedying the prejudice to the respondent could not simply be done by having the applicant attend the IEs, as it has been over 3 to 4 years since they were requested.

27After reviewing Amoh v Pembridge Insurance¹⁵, I found this matter to be persuasive, as it also dealt with an applicant who failed to attend their IEs for several years, and this could not be remedied due to the extensive amount of time that has passed and therefore, chose to adopt it in this decision. As such, I find that since the applicant failed to comply with section 44 and 55(1)2 of the Schedule, she cannot proceed with her application.

28I also chose not to exercise my direction under section 55(2) of the Schedule to permit the application.

CONCLUSION AND ORDER

29The applicant is barred from proceeding with her application based on section 55(1)2 of the Schedule and her application is dismissed.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Motion Order of Adjudicator Mazerolle dated August 9, 2021.
3. 3Explanation of Benefits from the respondent to the applicant dated September 24, 2019.
4. 4Notice of Examination from the respondent to the applicant for a physiatry assessment dated January 10, 2018.
5. 5Notice of Failure to Attend Examination by Insurer from Viewpoint to the respondent, dated February 5, 2018.
6. 6Notice of Insurer’s Examination from the applicant to the respondent dated February 16, 2018.
7. 7Notice of Insurer’s Examination from the applicant to the respondent dated March 5, 2018.
8. 8Explanation of Benefits from the respondent to the applicant dated June 4, 2018.
9. 9Notice of Insurer’s Examination from the applicant to the respondent dated August 14, 2018.
10. 10Notice of Insurer’s Examination from the applicant to the respondent dated June 7, 2019.
11. 11Explanation of Benefits from the respondent to the applicant dated July 10, 2019.
12. 12Explanation of Benefits from the respondent to the applicant September 23, 2019.
13. 13R.T. v. COSECO Insurance Company, 2019 CanLII 119804 (ON LAT) at para. 79 i.
14. 14Amoh v Pembridge Insurance, 2021 CanLII 76587 (ON LAT) at para. 20.
15. 15Amoh v Pembridge Insurance, 2021 CanLII 76587 (ON LAT) at para. 20.