Citation: Lowe v. Motor Vehicle Accident Claims Fund (MVACF), 2022 ONLAT 20-000876/AABS - PI

Licence Appeal Tribunal File Number: 20-000876/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:

Lotoye Lowe

Applicant

and

Motor Vehicle Accident Claims Fund (MVACF)

Respondent

PRELIMIINARY ISSUE DECISION

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Yalda Aslamzada, Counsel

For the Respondent:

Sharon E. Warden, Counsel

HEARD:

By way of written hearing

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on May 30, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010¹ ("Schedule"). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

PRELIMINARY ISSUE

2By way of Order at the Case Conference, the following preliminary issue is before the Tribunal to determine:

i. Is the applicant precluded from proceeding on her application because she failed to attend the insurer's examination?

SUBSTANTIVE ISSUES IN DISPUTE

3On consent, the following substantive are to be decided by the Tribunal:

1. Is the applicant entitled to medical benefits of $2,082.85 for psychological independent examination?

2. Is the applicant entitled to interest on any overdue benefit?

LAW

4Sections 14, 15 and 16 of the Schedule states that an insurer shall pay medical and rehabilitation benefits to, or on behalf of an applicant so long as said person sustains an impairment as a result of an accident and that the medical or rehabilitation benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident.

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 professional 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]² if the insurer has provided the insured person with a notice in accordance with the Schedule that is requires an examination under section 44, but the insured person has not complied with that section.

7Section 55(2) of the Schedule states that the Tribunal may permit an insured person to apply to it, despite paragraphs 2 and 3 of section 55(1).

8Section 55(3) of the Schedule states that that the Tribunal may impose terms and conditions on a permission granted under section 55(2) of the Schedule.

EVIDENCE, SUBMISSIONS & ANALYSIS

9After considering the evidence of the parties based on a balance of probabilities, I find that the applicant is not entitled to the medical benefit and interest in dispute, as she is statue-barred from proceeding with her application to the Tribunal for the following reasons:

i. The applicant's submissions focused on the substantive issue; she argued that the treatment plan ("OCF-18") of $2,082.85 for a psychological independent examination was reasonable and necessary.

ii. The applicant submitted that since she was involved in the accident, she has been regularly visiting her family doctor, Dr. Gabriel Peracchia. Dr. Peracchia noted that after the accident³, the applicant suffered a head injury. The applicant complained of on-going headaches,⁴ burning eyes and blurry vision,⁵ headaches, back pain, and leg pain⁶ after the accident.

Dr. Peracchia recommended the applicant attend a Neuropsychological Assessment⁷. The applicant was eventually seen by Dr. Jose Martin Del Campo, Neurologist.⁸

iii. The applicant also saw D. Knolly Hill, Psychologist,⁹ who diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia – Situational Pedestrian and opined that the applicant's injuries remove her from the Minor Injury Guideline ("MIG"). Dr. Hill also submitted that the applicant's psychological injuries are severe enough that Dr. Hill considers psychological treatment reasonably and necessary for the applicant¹⁰ and recommends 12 sessions of psychotherapy sessions, a cognitive assessment, a referral for a psychiatrist for psychopharmacology intervention, 12 sessions of cognitive-behavior and supportive therapy and 2 hours for psychometric evaluation and clinical review.¹¹

iv. The applicant's submissions were silent with regards to the preliminary issue.

v. The respondent does not dispute that the applicant was in the accident. However, it argued that the applicant cannot proceed with her application, as she is statute barred by section 55(1)2 of the Schedule. Since the applicant has not complied with the respondent's request for an insurer's examination in accordance with section 44 of the Schedule, the respondent submitted that pursuant to section 55(1)2 of the Schedule, the applicant cannot proceed with her application related to the substantive issue, as she has not complied with the respondent's request for an insurer's examination.

vi. The respondent provided some background to support its position. The respondent stated that the applicant submitted her Application for Accident Benefits ("OCF-1") to the respondent on October 27, 2017.¹² The applicant submitted a Treatment Confirmation Form ("OCF-23"), which was completed by Dr. James Tran, Chiropractor, and was received by the respondent on November 2, 2017.¹³ Dr. Tran found the applicant's injuries to be soft-tissue and that said injuries fell within the MIG.¹⁴

The applicant then submitted a Treatment and Assessment Plan ("OCF-18") for a psychological assessment,¹⁵ recommended by Dr. Ilya Gladshteyn, Psychologist, and was received by the respondent via the Health Claims for Auto Insurance ("HCIA")¹⁶ electronic system.

The respondent denied the OCF-18 based on its assertion that there was no medical documentation to support the applicant's psychological complaints.¹⁷

The respondent gave the applicant notice¹⁸ of an insurer's examination with Fabio Salerno, Psychologist, to determine if the OCF-18 was reasonable and necessary.¹⁹

After the applicant's representative requested that the insurer's examination commence at an earlier start time²⁰, the applicant was sent a new notice for the insurer's assessment,²¹ again to determine if the OCF-18 was reasonable and necessary.

The applicant failed to attend the insurer's examination with Mr. Salerno on September 7, 2018.²² The applicant's representative was notified of their failure to attend on the same day.²³

vii. On January 16, 2020, the applicant filed her application with the Tribunal.²⁴ The respondent maintains that the applicant did not ask to reschedule her insurer's assessment with Mr. Salerno prior to filing this application. The respondent also directed the Tribunal's attention to the application itself, which conceded that the applicant did not attend the insurer's examination prior to filing her application.²⁵

The respondent also noted that the applicant did not provide it with an explanation regarding her failure to attention the prior insurer's examination. The respondent also submitted that as of filing its written submissions for this application, the applicant has not asked to reschedule this insurer's examination.

The respondent submitted this insurer's examination was needed, as the OCF-18 in question was completed while the applicant's injuries were deemed to fall within the MIG²⁶ and is now needed to determine if the OCF-18 is reasonable and necessary. For reference, the applicant was removed from the MIG on December 4, 2020.

The respondent also submitted that the Notice of the Insurer's Examination was not faulty and complied with section 44 of the Schedule.

Based on the above, the respondent requested that the Tribunal find that the applicant may not proceed with her application, as she has failed to comply with section 55(2)1 of the Schedule.

viii. After considering the submissions of the parties, I find that since the applicant has failed to attend the insurer's examination pursuant to section 44 of the Schedule, she is statute-barred from proceeding with this application based on section 55(1)2 of the Schedule.

Section 55(1)2 is explicit when it states that an insured person, meaning the applicant, shall not apply to the Tribunal if the insurer, meaning the respondent, has provided the insured person with notice in accordance with the Schedule that it requires an examination under section 44, but the insured person has not complied with this section.

Section 55(2) of the Schedule does allow an insured person to apply to the Tribunal to apply despite section 55(1) of the Schedule, with section 55(3) providing that the Tribunal may impose terms and conditions for such.

In this case, the applicant's submissions neither address the section 55(1) issue, nor seek that the Tribunal use discretion under section 55(2) of the Schedule. Based on this, I made an inference that the applicant did not dispute that she failed to attend the insurer's assessment.

Furthermore, the applicant's submissions do not discuss why she did not attend the required insurer's assessment in 2018, and why she has not attempted to reschedule it between the date of her missed assessment, September 7, 2018, and the date of filing her application, January 16, 2020.

Without some kind of explanation as to what happened between that period, I find that the respondent is correct in its assertion that the applicant is not permitted to apply to the Tribunal, as she must first attend the insurer's examination; only after this process is completed can the applicant apply to the Tribunal.

CONCLUSION

10The applicant is statue-barred from applying for the medical benefit of $2,082.85 for a psychological examination, as she failed to attend the insurer's examination prior to applying to the Tribunal.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Insurance Act, R.S.O. 1990, c. I.8
3. 3On May 31, 2017.
4. 4As seen in Dr. Peracchia's clinical notes and records of June 14, 2017.
5. 5As seen in Dr. Peracchia's clinical notes and records of September 13, 2017.
6. 6As seen in Dr. Peracchia's clinical notes and records of September 15, 2017.
7. 7As seen in Dr. Peracchia's clinical notes and records of December 7, 2017 and February 2, 2018.
8. 8On October 6, 2017.
9. 9On January 6, 2020.
10. 10As seen in Dr. Hill's Psychological Assessment Report dated January 8, 2020.
11. 11Ibid.
12. 12OCF-1 of the Applicant dated October 27, 2017.
13. 13OCF-23 completed by Dr. Tran dated October 6, 2017.
14. 14Ibid.
15. 15Dated June 19, 2018.
16. 16On July 31, 2018.
17. 17Respondent's Correspondence from Claimpro dated August 8, 2018 and Explanation of Benefits dated August 8, 2018.
18. 18On August 14, 2018.
19. 19Scheduled for September 19, 2018 at 12:00PM.
20. 20Email from Noor Al·Mosawi to Marianna Scarpelli at Claimspro dated August 20, 2018.
21. 21For September 7, 2018 at 10:00 AM.
22. 22Supported by an email from Vista Disability Manage Inco to Marianna Scarpelli, dated September 7, 2018.
23. 23Email from Marianna Scarpelli to Noor Al-Mosawi dated September 7, 2018.
24. 24Based on a review the Tribunal's Content Management System and the time stamp on the Application.
25. 25Based on Question #4 of the Application received January 16, 2020.
26. 26Based on a letter from the respondent to the applicant, dated December 4, 2020.