Citation: Lawrence-Lampart v. Aviva General Insurance Company of Canada, 2023 ONLAT 21-014291/AABS-PI
Licence Appeal Tribunal File Number: 21-014291/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:
Kailah Lawrence-Lampart
Applicant
and
Aviva Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Pasquale Maiolo, Counsel
For the Respondent:
James Kolumbus, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kailah Lawrence-Lampart, the applicant, was involved in an automobile accident on November 29, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company of Canada (“Aviva”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for a driver’s assessment because the applicant has failed to attend an insurer’s examination (“IE”).
3I note that there is a discrepancy in the case conference report and order dated November 30, 2022. Under the substantive issues section, issue #2 is listed as a treatment plan in the amount of $2,200.00 for a psychological assessment proposed by Marjorie Green in a treatment plan submitted on November 4, 2021. However, the submissions refer to a driving reintegration assessment.
4The Tribunal requested additional information from the parties regarding this discrepancy. The respondent confirmed that issue #2 should state that “$2,200.00 for a driving reintegration/environmental assessment proposed by Marjorie Green in a treatment plan submitted on November 4, 2021 and denied on November 18, 2021. The applicant’s counsel did not provide a response to the Tribunal’s inquiry.
5The Tribunal is satisfied that there is only one treatment plan in dispute and will make a determination whether the applicant is barred from proceeding with her application for the driving reintegration/environmental assessment due to the failure to attend the IE.
RESULT
6The applicant may proceed with her application.
ANALYSIS
Background
7On November 11, 2021, the applicant received the treatment plan for the driver’s assessment dated November 4, 2021. The treatment plan was denied by the respondent on November 22, 2021 in an Explanation of Benefits (“EOB”). The applicant was advised that she would need to attend an insurer’s examination (“IE”) on December 15, 2021. She did not attend the IE. The IEs were rescheduled for January 18, 2022, February 9, 2022 and April 27, 2022. The applicant did not attend these IEs either.
Parties’ positions
8The respondent submits that an assessment of this type is reasonably required to determine whether the proposed assessment is reasonable and necessary. A psychological assessment will evaluate the extent to which the applicant suffers driver and passenger anxiety, which is a necessary part of determining the reasonableness of the proposed treatment plan. Given that the proposed assessment is reasonably required, the applicant’s failure to attend triggers the mandatory language of section 55(1)2. The applicant should be precluded from proceeding to a written hearing.
9The applicant did not file submissions in relation to the preliminary issue in dispute.
The law
10Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require