Tia M Karaminas v. Aviva Insurance Company, 2023 CanLII 1456

Licence Appeal Tribunal

21-007711/AABS -P. I.

Licence Appeal Tribunal File Number: 21-007711/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:

Tia M Karaminas

Applicant

and

Aviva Insurance Company

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Tia Karaminas, Applicant, Self-represented

For the Respondent:

Andrea Dunbar, Claims representative

Jonathan White, Counsel

Heard by way of written submissions

REASONS FOR DECISION [AND ORDER]

BACKGROUND

1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on July 1, 2019.

ISSUES IN DISPUTE

2Preliminary Issue: The preliminary issue to be decided is:

1. Is the applicant barred from proceeding with her application for the issues in dispute pursuant to section 55(1)2 of the Schedule for failing to attend multiple scheduled Insurer’s Examinations in contravention of section 44(9)2.iii of the Schedule?

PARTIES’ POSITIONS

3The respondent submitted the applicant has not attended the insurer examinations (‘IEs’) despite the respondent’s multiple attempts to reschedule the IEs numerous requests. The only explanation that the applicant provided is that she is unable to attend due to an illness. The IE notice letters complied with sections 44(5) and (6) of the Schedule and the timing of the notices was reasonable. The respondent stated that there will be significant prejudice if the applicant were to be able to proceed on the merits of the application. The respondent does not have any section 44 reports to assess the applicant’s injuries. Moreover, the respondent has incurred substantial cancellation costs due to the applicant’s non-compliance.

4The applicant did not provide any submissions or evidence in support of her case. It should be noted that the Tribunal extended the timelines for the submissions and the applicant failed to comply.

LAW

5Section 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 an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

6The requirements for a notice of examination set out in s. 44(5) of the Schedule are:

If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination;

(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

7Section 44(9)2. sets out the rules for an in-person IE:

The following rules apply in respect of the examination: …

2. If the attendance of the insured person is required,

i. the insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person,

ii. 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

iii. 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.

8Section 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.

9Taking all of the above provisions, the Schedule is clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance. To be clear, the respondent must first prove that a Notice of Examination complies with s. 44(5) of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55.

10In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit in dispute and any section it relies upon. The reasons must be clear enough so that the applicant can make a well-informed decision.

11The notice requirements set out in s. 44(5) should be strictly construed and the insurer's notice should be closely examined to ensure it complies. If the respondent’s notice does not comply with s. 44(5), an insurer cannot rely on the severe remedy available in s. 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.

Are the notices of examination in compliance with s. 44(5)?

12The next stage of my analysis will address the notices of examination for the substantive issues set out in Vice-Chair Dymond’s Order dated October 19, 2022.

Notice of examination dated November 8, 2019 re OCF-3 for the Non-Earner Benefit

13I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon. The medical reason is vague. It stated, “there appear to be pre-existing or concurrent medical conditions exist that might affect the patient's care, treatment, and prognosis”. It is unclear what conditions that the respondent is referring to. Therefore, I find this notice to be deficient.

Notice of examination dated November 29, 2019 re OCF-3 re the Non-Earner Benefit

14I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon. The medical reason is vague. It stated, “there appear to be pre-existing or concurrent medical conditions exist that might affect the patient's care, treatment, and prognosis”. It is unclear what conditions that the respondent is referring to. Therefore, I find this notice to be deficient.

Notice of examination dated December 3, 2019 for chiro and massage therapy in the amount of $2,872.50 and the attendant care assessment in the amount of $1,771.46

15I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not provide any medical reasons and nor does it mention her medical conditions. Therefore, I find this notice to be deficient.

Notice of examination dated December 28, 2019 for chiro and massage therapy in the amount of $2,872.50 and the attendant care assessment in the amount of $1,771.46

16I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice does not provide any medical reasons and nor does it mention her medical conditions. Therefore, I find this notice to be deficient.

Notice of examination dated June 13, 2022 re OCF-3 dated July 30, 2019

17I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon. The medical reason is vague. It stated, “there appear to be pre-existing or concurrent medical conditions exist that might affect the patient's care, treatment, and prognosis”. It is unclear what conditions that the respondent is referring to. Therefore, I find this notice to be deficient.

Notice of examination dated June 13, 2022 re OCF-18 dated July 30, 2019 for chiropractic treatment and massage in the amount of $2,872.50 and an attendant care assessment in the amount of $1,771.46.

18I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not refer at all to her medical condition or provide a medical reason. Therefore, I find this notice to be deficient.

Notice of examination dated July 26, 2022 re OCF-18 in the amount of $2,872.50 and the attendant care assessment in the amount of $1,771.46

19I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not refer at all to her medical conditions or provide medical reasons. Therefore, I find this notice to be deficient.

Notice of examination dated July 26, 2022 re OCF-3 re the Non-Earner Benefit

20I find that the notice did not comply with section 44(5) of the Schedule. The notice notes the type of examination. It refers to the benefit in dispute. However, the notice did not refer at all to her medical condition or the specific provision of the Schedule that it relied upon. The medical reason is vague. It stated, “there appear to be pre-existing or concurrent medical conditions exist that might affect the patient's care, treatment, and prognosis”. It is unclear what conditions that the respondent is referring to. Therefore, I find this notice to be deficient.

OCF-18 in the amount of $2,557.69 for assistive devices and attendant care benefits in the amount of $1,527.69 from September 9, 2019 to ongoing

21The letter dated August 4, 2022 from the respondent notes that the applicant failed to attend multiple IEs. The OCF-18 in the amount of $2,557.69 and Form 1 in the amount of $1,527.69 are also mentioned. However, the respondent did not submit any of the notices of examinations for these two benefits. The notices of examination that were submitted do not mention the OCF-18 for assistive devices or the Form 1. Nor is there any evidence that addresses this treatment plan and the attendant care benefits.

22I am not satisfied that she should be statute-barred under section 55(1)2. There is no evidence before the Tribunal that they sought an IE. Moreover, the letter does not prove that there was a valid notice. The best evidence would be in the possession of the respondent, which is the notice of examination.

23As such, I find that the applicant is not statute-barred from proceeding with this treatment plan and the attendant care benefits.

ORDER

24The preliminary issue is dismissed. The matter will proceed to a hearing as set out in the order of Vice-Chair Dymond.