Licence Appeal Tribunal File Number: 20-008811/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:
Nina Fernandez
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Carlos Ortiz, Paralegal
For the Respondent:
Riley McIntyre, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant was injured in an accident on January 1, 2018, and sought benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). The applicant was denied the benefit in dispute because Economical determined that her accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
2According to the Case Conference Order, the following issues are in dispute:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
b. Is the applicant entitled to a medical benefit in the amount of $2,656.00 for physiotherapy services in a treatment plan (OCF-18) recommended by Health One Rehab submitted on November 26, 2019?
c. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
d. Is the applicant entitled to interest on any overdue payment of benefits?
3In addition, according to the Motion Order dated March 15, 2021, the following preliminary issues were added to the dispute:
a. Is the applicant barred from proceeding with this application under s. 55 due to her non-attendance at the insurer’s examination (“IE”) scheduled for February 4, 2021?
b. Is the respondent entitled to payment from the applicant for the non-attendance fee arising from her non-attendance at the IE scheduled for February 4, 2021?
The following substantive issue was also added to the dispute:
c. Is the applicant entitled to a finding that the treatment plan (dated November 26, 2019) is deemed incurred, in accordance with s. 3(8) of the Schedule?
RESULT
4The applicant is statute-barred from proceeding with her application under s. 55, as she failed to attend a properly scheduled s. 44 IE.
ANALYSIS
Preliminary issue: the applicant is statute-barred from proceeding
5I find the applicant is statute-barred from proceeding with her application due to her refusal to attend a properly scheduled s. 44 IE. Under s. 44, an insurer has a right to require an insured to undergo a medical examination to assist in determining whether the insured is entitled to or continues to be entitled to a benefit as long as the request is not made more than is reasonably necessary. If an insured fails to attend a properly scheduled IE, they are statute-barred from proceeding under s. 55. The notice requirements for an IE are set out in s. 44(5).
6Here, the applicant submitted the sole treatment plan in dispute—a November 26, 2019 OCF-18 for physiotherapy and massage totalling $2,656.00—to Economical on December 17, 2019. In a letter dated December 24, 2019, Economical advised the applicant that it did not consider the treatment plan reasonable and necessary or payable, as Dr. Hosseini had previously opined in a s. 44 report that the applicant sustained only minor injuries as a result of the accident and was therefore subject to the MIG.
7In the same letter, Economical advised that if further medical records were provided it would review the treatment plan and/or refer the applicant to a s. 44 IE. On July 23, 2020, the applicant submitted her application to the Tribunal to dispute whether her injuries fell within the MIG and the denial of the OCF-18.
8As a result, via letter dated August 7, 2020, Economical requested the applicant provide additional medical records and information, including the clinical notes and records of her family physician, a decoded OHIP summary, a collateral benefits/disability summary and her employment file. When the requested documents were not received, Economical repeated its request in a letter dated December 31, 2020.
9On January 1, 2021, the applicant provided Economical with the updated records from her family physician. In correspondence dated January 11, 2021, Economical acknowledged receipt and advised that the applicant was required to attend an IE to determine if the newly disclosed medical records changed Dr. Hosseini’s opinion about the MIG and the OCF-18.
10The letter set out the IE details, including the name and specialty of Dr. Hosseini, the date, time and location and also indicated that the applicant’s travel expenses would be reimbursed. The letter states that the applicant was required to attend. To date, the applicant has failed to attend the s. 44 IE.
11I agree with Economical that the applicant appears to be conflating the limitations and requirements of s. 33, s. 38 and s. 44 of the Schedule. As I understand it, the applicant’s explanation for her non-attendance is that Economical’s letter dated December 24, 2019 was not a clear and unequivocal denial because “the letter suggests that the treatment could have been approved in the future based on a future section 44” but the letter also states that Economical was “not requesting you to attend and [IE] in relation to the OCF-18.”
12In addition, the applicant also argues that the notice of the IE was made