Citation: Skobeleva v. BelairDirect, 2023 ONLAT 21-008214/AABS
Licence Appeal Tribunal File Number: 21-008214/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:
Inna Skobeleva
Applicant
and
BelairDirect
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Alexander Makaronets, Counsel
For the Respondent: Gauri Gogna, Counsel
HEARD: In Writing November 4, 2023
OVERVIEW
1Inna Skobeleva, the applicant, was involved in an automobile accident on December 21, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, BelairDirect, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant barred from proceeding with the application pursuant to section 55(1)2 of the Schedule because she failed to comply with section 44 of the Schedule?
RESULT
3I find that the respondent complied with section 44 of the Schedule in its request fir insurer's examinations related to the treatment plans dated September 1, 2020, November 5, 2020, September 14, 2020, and October 30, 2021. Consequently, the applicant is barred under section 55(1)2 of the Schedule from proceeding before the Tribunal on these issues due to her failure to attend at properly scheduled section 44 examinations.
ANALYSIS
Background
4The applicant submitted treatment plans dated September 1, 2020, November 5, 2020, September 14, 2020, October 30, 2021, and February 10, 2021, asserting that her injuries fell outside of the Minor Injury Guidelines ("MIG"), and that she required physiotherapy treatments, psychological counselling, and a chronic pain program to alleviate her injuries. In response, the respondent sent a notice of examination for each treatment plan to the applicant. The applicant failed to attend the scheduled assessments, and also failed to attend the re-scheduled assessments.
5The evidence provides that for the September 1, 2020 treatment plan, the respondent sent a notice of examination for a physiatry assessment dated October 19, 2020. The assessment was to take place on November 11, 2020. The applicant advised in writing that the examination should take place by way of a paper review, citing the applicant's right to privacy. The applicant did not attend the November 11, 2020 assessment, the December 8, 2020 re-assessment, or the June 7, 2023 re-assessments which were scheduled by the respondent. The applicant did not attend citing the assessment should be in writing. No reason was provided by the applicant with respect to the last non-attendance.
6For the September 14, 2020 treatment plan, the respondent sent a notice of examination for a psychological assessment dated January 27, 2021. The assessment was to take place on February 4, 2021. The applicant advised in writing that the examination should be conducted by Dr. Deborah Cowman, an assessor who had previously assessed the applicant, citing the applicant's right to privacy. The respondent provided proper notice and the applicant did not attend the February 4, 2021 assessment, the March 4, 2021 re-assessment, or the April 6, 2021 re-assessment citing the applicant's right to privacy.
7For the November 5, 2020 treatment plan, the respondent sent a notice of examination for a psychological assessment dated December 1, 2020. The applicant did not attend the December 8, 2020 assessment, or the June 7, 2023, re-assessment. No reasons were provided for her non-attendance.
8For the October 30, 2021 treatment plan, the respondent sent a notice of examination for a multi-disciplinary assessment dated January 3, 2022. The applicant did not attend the January 11, 2022 and January 23, 2022 assessments. The applicant advised that the examination should be conducted by Dr. Deborah Cowan and Dr. Gary Gelman, assessors who had previously assessed the applicant, citing the applicant's right to privacy. The applicant did not attend the assessments or the February 23, 2022 re-assessment citing the applicant's right to privacy.
Parties positions
9There is no dispute between the parties as to whether proper notice setting out the medical and any other reasons for the examination was provided by the respondent. Nor is there any dispute between the parties that the applicant did not attend any of the insurer's examinations requested by the respondent.
10The crux of the matter is whether the applicant provided a reasonable explanation for her non-attendance. The applicant submits that she was not unwilling to comply with the examinations but prior to doing so she sought additional clarification from the respondent. The applicant sought clarification on whether a previous assessor was available to assess her in order to preserve her right to privacy by being less intrusive to her medical history, and also sought clarification on whether the examination could be conducted via a paper review and not in person. The respondent never responded. It is the applicant's position that this is a reasonable explanation for not complying with the section 44 requests.
The applicant has not provided a reasonable explanation for her continued non-attendance at properly scheduled s. 44 IEs
11Section 55(1)2 of the Schedule bars an insured person from proceeding with an application before the Tribunal if they have failed to comply with a request made in accordance with section 44 of the Schedule to attend an insurer's examination. The onus is on the insured person to establish a reasonable explanation for not complying with a valid section 44 request.
12The Schedule provides for examinations at an insurer's expense by a regulated health professional of the insurer's choosing to assist in determining an insured person's entitlement to a benefit. Requests for insurer's examinations under section 44 of the Schedule must not be made more often than is reasonably necessary and must be accompanied by a notice setting out the medical and any other reasons for the examination.
13Section 44(9)2 sets out the rules for an in-person insurer examination:
(2) If the attendance of the insured person is required,
(a) the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,
(b) the insured person and the insurer shall, not later than five business days before the day scheduled for the examination, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person's medical condition, and the insured person shall attend the examination and submit to all reasonable physical, psychological, mental and functional examinations requested by the person or persons conducting the examination.
14The Schedule is clear that the applicant has a duty to participate in each in-person insurer's examination that is reasonably necessary and for which there is Schedule-compliant notice. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance.
15I am persuaded that the respondent complied with section 44(9)2 when it requested in-person examinations of the applicant, as the notice of examinations specified that the applicant's attendance was required. Further, information required about the date, time and location of the insurer's examination was provided in each of the notices. Furthermore, the respondent re-scheduled the assessments after the applicant failed to attend in order to accommodate her. Lastly, while insurers should always be alive to the privacy concerns of insureds, there is no requirement in the Schedule which provides that the respondent is obligated to conduct all insurer's examinations with the same assessors or that the respondent must arrange for an assessor requested by the applicant. The applicant did not meet her onus to establish a reasonable explanation for not complying with the section 44 request.
16I find that the applicant's failure to attend at properly scheduled assessments has precluded the respondent from making a full answer and response to her benefit claims. Allowing the application to proceed precludes the respondent from having any way to respond to the applicant's medical evidence and amounts to a breach of procedural fairness. Where the applicant failed to attend, and where she has not provided a reasonable explanation for her non-attendance, I find that she is statute-barred from proceeding with her application at the Tribunal pursuant to s. 55(1)2.
ORDER
17The applicant is statute-barred from proceeding before the Tribunal with the following claims pursuant to section 55 of the Schedule for failing to comply with the requests for insurer's examinations properly made by the respondent under section 44:
i. $1,393.37 for physiotherapy proposed by Alliance Diagnostics and Treatments Inc in a treatment plan dated September 1, 2020.
ii. $2,178.78 for physiotherapy, proposed by Alliance Diagnostics and Treatments Inc in a treatment plan dated November 5, 2020.
iii. $3,642.65 for psychological services, proposed by All Health Medical Centre in a treatment plan dated September 14, 2020.
iv. $12,190.26 for a chronic pain program, proposed by All Health Medical Centre in a treatment plan dated October 30, 2021.
v. $2,260.00 for a psychological assessment, $2,260.00 for a chronic pain assessment, and $2,460 for a neurological assessment, proposed by All Health Medical Centre in a treatment plan dated February 10, 2021.
18There is no basis for interest or an award.
Released: December 7, 2023
__________________________
Monica Ciriello
Vice-Chair