Citation: Kaur v. Intact Insurance Company, 2022 ONLAT 21-000737/AABS – P.I.

Licence Appeal Tribunal File Number: 21-000737/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:

Ravneet Kaur

Applicant

and

Intact Insurance Company

Respondent

PRELIMINARY ISSUES DECISION

VICE-CHAIR: Beverly Brooks

APPEARANCES:

For the Applicant: Linda To, Counsel

For the Respondent: Emily Wilson, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant, Ravneet Kaur, was involved in an automobile accident on June 13, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). (“Schedule”).

2The applicant was denied certain benefits by the respondent, Intact Insurance Company, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The respondent characterized the applicant’s injuries as predominantly minor injuries and subjected her to the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit provided for a minor injury. The applicant has exhausted the monetary limit of $3,500.00 under the MIG.

4The applicant’s position is that the accident caused her to suffer psychological impairments and functional limitation injuries which removed her from the MIG and that the proposed treatment plans are necessary for her to attain full recovery.

5The onus is on the applicant to prove on a balance of probabilities that the accident caused psychological impairment and functional limitation injuries that remove her from the MIG.

PRELIMINARY ISSUES

6The respondent raised the following preliminary issues:

i. Is the application statute-barred pursuant to s. 55 of the Schedule, as the applicant failed to attend two insurer’s examinations (“IE”)?

ii. Should Tab F of the applicant’s written submission be excluded as this evidence was not provided to the respondent by the production deadline of December 17, 2021?

SUBSTANTIVE ISSUES

7The following substantive issues are to be decided:

a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to the MIG which limits the costs of treatments to under $3,500?

b. Is the applicant entitled to $1,297.69 for chiropractic services submitted in a treatment plan/(”OCF-18”) provided by Complete Rehab Centre?

c. Is the applicant entitled to $3,444.13 for psychological treatment proposed in an OCF-18 provided by Complete Rehab Center?

d. Is the applicant entitled to $1,803 for chiropractic treatment proposed in an OCF-18 provided by Complete Rehab Centre?

e. Is the applicant entitled to $1,160 for psychological assessment proposed in an OCF-18 provided by Complete Rehab Center?

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

g. Is the applicant entitled to an award pursuant to s. 10 of Regulation 664?

RESULT

8The applicant has failed to attend two properly scheduled IEs. I deny the request to bar this application, pursuant to s. 55(1) 2 of the Schedule. Instead, I exercise my discretion under ss.55(2) and (3) of the Schedule to stay the applicant for 120 days starting on the day this decision is released, within which the applicant shall comply with the respondent’s request to attend the outstanding psychological assessment IE.

9I will decline to exclude Tab F of the applicant’s written submission as evidence on the basis that it was not submitted to the respondent by the deadline and I will give the information less weight than it would have been allocated if it had been submitted by the deadline. My decision on this issue should not be interpreted as fettering the discretion of the adjudicator who hears this case on its merits.

PRELIMINARY ISSUES

Failure to Attend an IE

10I agree with the respondent that the applicant failed to attend two psychological impairment assessment IEs.

11The applicant has no explanation for her non-attendance at two IEs (scheduled for August 25, 2021 and September 30, 2021) despite having an opportunity to make a reply submission (which she did not). I find that the applicant is required to attend the IE for the following reasons.

12Section 44 (1) of the Schedule provides the respondent with the ability to examine an insured, but not more than reasonably necessary, and to determine the entitlement to a benefit for which an application is made. At issue is whether the psychological IE proposed by the respondent is reasonably necessary to determine whether the applicant has sustained psychological impairment.

13I find the LAT decision 17-005291/AABS v Travelers Canada¹, (“the Travelers decision”) to be persuasive and I adopt its principles for my analysis. According to the Travelers decision, the following are factors to consider when determining whether the respondent’s requested insurer examinations are reasonably necessary:

1. The timing of the respondent’s request;

2. The possible prejudice to either side;

3. The number and nature of previous examinations;

4. The nature of the examination being requested;

5. Whether there are any new issues being raised in the claim that require evaluation; and

6. Whether there is a reasonable connection between the examination requested and the applicant’s injuries.

14The respondent arranged two psychological assessment IEs for the applicant and sent correspondence to the applicant when she missed the appointments to notify her that her benefits had been suspended because of her non-attendance.

15The lack of completed psychological assessment IEs creates prejudice against the respondent as the respondent requires these IEs to obtain an independent medical opinion regarding the applicant’s claimed psychological impairment. Furthermore, the benefits being claimed include a psychological treatment and a psychological assessment.

16The applicant has attended a physiatry assessment IE conducted by Dr. Heitzner but Dr. Heitzner is a physiatrist not a psychologist or psychiatrist and, therefore, not qualified to conduct a psychological assessment. A physiatry IE is an assessment of the applicant’s physical limitations and not a psychological assessment. I mention this because, in my view, it indicates the applicant’s compliance with a section 44 examination when properly requested by the respondent.

17The nature of the psychological impairment is important to determine as the applicant is claiming that she has sustained a psychological impairment as a result of the accident and is, therefore, out of the MIG. There is a reasonable connection between the examination requested and the applicant’s injuries because the applicant is maintaining that she is out of the MIG due to a psychological impairment.

18A Notice of Examination sent by the insurer to request that the insured person attend an IE must comply with ss. 44 (5) and (6) of the Schedule, which sets out the specific notice details for IEs. For a Notice of Examination to be proper, an insurer is required to arrange an appointment at its own expense, and:

i. provide the medical and other reasons (s) for the examination;

ii. provide the name(s) and credential(s) of the person(s) who will conduct the examination;

iii. indicate whether the insured person’s attendance is required;

iv. if attendance is required, specify the day, time and location of the examination and give the insured person at least five business days’ notice.

19The respondent has complied with most of the specific notice requirements for the Notice of Examination. In its Notice of Examination the respondent explained the reason for the exam (the respondent needs a second opinion to determine whether the accident injuries can be treated within the MIG and whether the recommendations made by Dr. Mills are reasonable and necessary), provided the name and credentials of the person who would be conducting the exam, indicated that the insured person was to attend and included the date, time and location of the examination.

20It is unclear, however, as to whether each of the two Notices of Examination (one for an August 25, 2021 IE and another for a September 30, 2021 IE) included in the respondent’s submission² were sent to the applicant five business days in advance. The respondent sent a separate letter in advance of each Notice of Examination and stated in each letter that the Notice of Examination would follow under a separate cover. The respondent did not include the cover letters for the Notices of Examination in its submission and there are only three dates on each of the Notices of Examination – the applicant’s birth date, the date of the accident and the date of the appointment. Moreover, in a letter from the respondent to the applicant dated August 30, 2021, regarding the August 25, 2021 IE, the respondent stated that “We were not made aware by you or your legal representative that you had a change of address”.³ The first Notice of Examination may have been received later than five business days prior to the scheduled IE or not at all because of the applicant’s address change. It is unclear as to whether the second Notice of Examination was received five business days before the IE as the respondent did not include the cover letter in its submission and there was no (sent) date on the Notice of Examination. The address on the second Notice Of Examination was different than the address on the first Notice of Examination. Given these circumstances and the fact that the applicant has attended an IE for a physiatry assessment, it is my view that s. 55 should not be strictly applied and that the applicant should be given another opportunity to attend a psychological assessment IE.

Section 55 of the Schedule

21Section 55(1)2 of the Schedule states that an insured person shall not apply to the Licence Appeal Tribunal if the insurer has provided the insured person with a notice that it requires an examination, under s. 44, but the insured person has not complied with that section. It is trite to say that this stature bar is predicated on the Notice of Examination being compliant with the Schedule, as I have found here.

22I find that the applicant failed to attend a properly scheduled psychological IE, within the meaning of s. 55(1)2. of the Schedule. The applicant’s failure to attend the IE will have a prejudicial impact on the respondent at any hearing on the merits of this dispute. It leaves the respondent without any independent medical opinion on the applicant’s impairments. It is procedurally unfair to permit the applicant to rely on an expert opinion regarding her psychological health but not permit the respondent the opportunity to have its own assessor examine the applicant, as contemplated in s. 44 of the Schedule.

23Accordingly, the applicant is not entitled to apply to the Tribunal to adjudicate whether she sustained a minor injury because she failed to attend the s. 44 assessment. Consequently, I may either dismiss the application as being statute-barred or, under ss. 55(2) and (3), permit it to proceed on terms and conditions that it imposes on the applicant.

24Given my reasons, especially in paragraph 20, I decline to bar the application, as requested by the respondent; instead, I exercise my discretion under ss. 55(2) and (3) to stay the application for 120 days starting on the day after this decision is released, within which the applicant must comply with the respondent’s psychological IE. In my view, this strikes an appropriate balance between allowing the application to proceed (instead of barring it) and affording fairness to the respondent in resolving this dispute on its merits.

OTHER ISSUES

25The information at TAB F consists of a collection of doctor’s notes and questionnaires completed by the applicant from Complete Rehab Centre which provide some details about the applicant’s physical and psychological well being but do not offer sufficient information to draw conclusions as to whether the treatments for which approval is being sought by the applicant are reasonable and necessary. The respondent is seeking to statute-bar the application because the applicant has not attended a psychological IE. The contents of TAB F have no bearing on my decision regarding the respondent’s s. 55 request as they do not provide sufficient evidence of the applicant’s psychological impairment.

ORDER

26I order these proceedings stayed for 120 days starting on the day after this decision is released, within which the applicant shall attend a psychological IE.

Footnotes

1. 117-005291/AABS v Travelers Canada[1], 2018 CanLII 13172 (On LAT).
2. 2Respondent’s Application, Notice of Examination for the August 25, 2021 IE, Tab 8, Page 92 and Notice of Examination for the September 30, 2021 IE, Tab 9 Page 96.
3. 3Respondent’s Submission, Letter to Applicant about missed IE, August 30, 2021, Tab 9, page 95.