Citation: Lavigne v. BelairDirect, 2022 ONLAT 21-003082/AABS - M

Licence Appeal Tribunal File Number: 21-003082/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Jamie Lavigne

Applicant

and

BelairDirect

Respondent

MOTION DECISION

ADJUDICATOR:

Samia Makhamra, Adjudicator

APPEARANCES:

For the Applicant:

Sandra Train, Counsel

For the Respondent:

David Koots, Counsel

Heard by Way of Written Submissions

OVERVIEW

1The Applicant was injured in an automobile accident on October 1, 2020 and sought benefits from the Respondent, pursuant to the Statutory Accident Benefits Schedule¹ (Schedule).

2The Respondent placed the Applicant in the Minor Injury Guideline and denied two medical and rehabilitation benefits. The applicant disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for a resolution.

3The parties participated in a case conference on November 29, 2021. The matter was set down for a 1-day videoconference hearing on September 1, 2022. In addition, the Respondent filed a motion raising a preliminary issue, which is the subject of this decision.

PRELIMINARY ISSUE IN DISPUTE

4The preliminary issue is:

• Is the applicant barred from proceeding with her claim for medical benefits as she failed to submit to an insurer’s examination under section 44 of the Schedule?

RESULT

5The hearing in this matter is stayed until the Applicant attends the s.44 insurer’s examination the Respondent requested.

BACKGROUND

6On October 13, 2020, the Applicant submitted to the Respondent a treatment plan for an occupational therapy assessment in amount of $1,516.88. The Respondent denied the treatment plan citing the Minor Injury Guideline (MIG) and the need for additional medical records in order to determine entitlement to benefits beyond the MIG limits. The Respondent advised that once the requested records were provided, it would revisit its position and advise whether an insurer’s examination (IE) under s. 44 was required.

7On November 18, 2020, the Applicant submitted a treatment plan seeking occupational therapy services in the amount of $4,188.24. By correspondence dated December 8, 2020, the Respondent denied this treatment plan, advised the Applicant there was insufficient documentation provided to support a removal from the MIG limit, and requested clinical notes and records in order to determine whether a removal from the MIG was warranted. The Respondent advised that once the requested records were provided, it would revisit its position and advise whether an IE under s. 44 was required.

8On December 16, 2020, the Applicant provided the clinical notes and records of the family physician, Dr. Rita Awad.

9On February 4, 2021, the Applicant sought physical treatment under the MIG and submitted an OCF-23. While still in the MIG, on May 14, 2021, the Applicant submitted a treatment plan seeking $1,280.65 in physical therapy, which the Respondent approved on May 26, 2021.

10On April 30, 2021, the Respondent advised the Applicant that after reviewing the clinical notes and records, an IE was required. It advised of its position that the MIG applied, and that the disputed treatment plan for occupational therapy services was not reasonable and necessary.

11Shortly after, on May 3, 2021, the Respondent sent the Applicant a Notice of Examination scheduling the IE for June 4, 2021. At the Applicant’s request, the IE was then rescheduled to July 27, 2021.

12Subsequently, on June 8 and July 21, 2021, the Applicant advised the Respondent that she would not attend the IE because the respondent had failed to provide proper medical reasons in its Notice of Examination. She did not attend the IE.

13In a Notice of Examination dated December 14, 2021, the Respondent rescheduled the IE to January 23, 2022. In correspondence dated January 3, 2022, the Applicant advised she would not attend because the Respondent had failed to provide proper medical reasons. She did not attend the IE of January 23, 2022.

ANALYSIS

The notice met the requirements in the Schedule

14I have considered the parties’ submissions and evidence and find that the Respondent’s notices met the requirements under the Schedule.

15Section 44 of the Schedule gives the Respondent the right to conduct IEs but not more often than is reasonably necessary. Section 44(5) sets out the notice requirements for the IEs, which include the medical and other reasons for the examination, whether the insured’s attendance is required, the names of the persons who will conduct the examination with their medical credentials, and, if attendance is required, the date, time, and location of the assessment.

16Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s.44 but the insured person has not complied.

17Relying on s.55(1)2, the Respondent submits the Applicant should be barred from proceeding given that she failed to attend the IE. Regarding the notices, the Respondent submits they met the requirements in s.44(5): they provided medical and other reasons; informed the Applicant that her attendance was required; properly identified the health professional who was to conduct the IE; and, advised of the date, time and location of the IE. The Respondent relies on a leading Tribunal decision, M.B. v Aviva Insurance Canada, 2017 CanLII 87160 (ONLAT).

18The Applicant disagrees on essentially three grounds. First, she submits that the IE is not reasonably necessary given that the Respondent funded a treatment plan with the diagnosis of post-concussional syndrome, which, in her view, means that the Respondent accepted the diagnosis, and there was no longer the need for an IE. Second, she submits that the medical reasons provided were not proper and without specific details related to the Applicant. Third, she submits that the denials were not compliant with s.38(8) through (10), which means that the Respondent is precluded from relying on the MIG, and she should be allowed to proceed as a result.

19I find that the notices met the required criteria. Each notice indicated the examination was to assess medical and rehabilitation benefits and the applicability of the MIG, and provided all required details: date, time and location, the health professional conducting the IE, and the medical and other reasons.

20Specifically, each notice identified the reason for the IE as:

“Upon review of the clinical notes, the claimant suffered whiplash and possible concussion as diagnosis. Based on a virtual meeting, the claimant’s doctor had recommended imaging to be done in the emergency room to better understand the symptoms, therefore, an IE required to determine if the claimant has on going concussion symptoms.”

21In reviewing the above, I agree with the Respondent and find that the medical reasons sufficiently informed the Applicant of the reasons for the IE. In particular, the reasons mentioned the recently received clinical notes and records noting the claimant’s diagnosis of whiplash and a possible concussion, and that the clinical notes and records show the Applicant’s family doctor recommended imaging to better understand her symptoms. It also noted that the diagnosis of a possible concussion was based on a virtual visit and that an IE was required to determine if the Applicant has ongoing concussion symptoms.

22Accordingly, I disagree with the Applicant’s position on the reasons the Respondent provided. Further, I am not persuaded by the Applicant’s two other arguments. The Respondent’s approval of treatment under the MIG does not mean it had accepted the diagnosis of a possible concussion, or that it cannot request an IE under s.44 in relation to another treatment plan. And, of note, whether the Respondent’s denials breached s.38 is not an issue before me and has no bearing on Respondent’s ability to request an IE.

23I am prepared to stay the hearing until such time as the Applicant attends the IE the Respondent requested. I rely on sections 55(2) and (3), which provide that the Tribunal may permit an insured person to apply despite non-compliance with a s. 44 IE, and that it may impose certain terms and conditions.

24If the parties resolve the issues in dispute, the applicant shall immediately advise the Tribunal in writing.

Footnotes

1. 1Effective September 1, 2010 (Including amendments effective June 1, 2016), O. Reg. 34/10.