Licence Appeal Tribunal File Number: 20-013422/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:
Rosalie Ordonez
Applicant
and
Allstate Insurance
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Eric Winkworth, Counsel
For the Respondent:
Briana Cott, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1The applicant was involved in an automobile accident on August 7, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
Preliminary Issues
2The following preliminary issues are to be decided:
(a) Pursuant to s. 55 of the Schedule is the applicant barred from proceeding with her application to the Tribunal to determine her entitlement to $1,625.95 for chiropractic service due to her failure to attend an insurer examination (“IE”) as required under s. 44 of the Schedule?
(b) Is the applicant also barred from proceeding with her application to determine her entitlement to $2,659.16 for occupational therapy services, and $4,270.19 for occupational therapy services due to her failure to attend further IEs?
RESULT
3The applicant is statute-barred from proceeding with her application under s. 55 of the Schedule due to her failure to attend at properly scheduled s. 44 IEs.
ANALYSIS
4The respondent argued that the three issues in the application should be dismissed pursuant to s. 55 of the Schedule due to the applicant’s failure to attend IEs as required under s. 44 of the Schedule. I agree.
5Section 44 of the Schedule permits an insurer to require an insured person to be examined by one or more regulated health professionals of the insurer’s choice to determine if the insured person is or continues to be entitled to a benefit. Furthermore, under s.44(9)2 the applicant is statutorily required to attend the examination and submit to all reasonable physical, psychological, mental and functional examinations required by the person or persons conducting the examination provided the notice is proper and the IE is reasonably necessary.
6I agree with the respondent that it had the right to obtain examinations by health professionals of their choice pursuant to s. 44, and that the applicant failed to attend the occupational therapy (“OT”) and physiatry IEs. The applicant’s submission did not address the preliminary issues, it was only on reply that the applicant submitted she was provided insufficient or deficient notice of the IEs.
7Based on correspondence between the applicant and the respondent and the assessment notice letters, I find that the respondent has satisfied its burden to prove that it provided proper and sufficient notice of the IEs and was fully compliant with the statutory requirements under s. 44(5). The notices dated September 8, 2020; October 26, 2020; February 16, 2021; April 6, 2021; May 27, 2021; January 5, 2021; and February 25, 2021 advised the applicant that the respondent required an IE, provided the reasons an IE was requested (specifically citing the lack of updated medical documentation from the applicant), the date of the scheduled assessments, the practitioner the IEs were scheduled with, the consequences of non-attendance and a request for the applicant to contact the respondent 72 hours before the IE if she was unable to attend. The Notice of Examinations (NOEs) were provided to the applicant by regular mail and to her counsel by facsimile. I am satisfied that the letters and NOEs served on the applicant were fully compliant with the statutory requirements laid out in s. 44(5).
8I am satisfied by the respondent’s use of A.R.S. and Benchmark, both third party services to arrange the occupational therapy and physiatry IEs. The applicant submits that the third party used by the respondent to arrange the IEs was a non-regulated healthcare practitioner. I am satisfied that reliance on a third party is in line with previous Tribunal decisions, including L.C. v. Aviva Insurance Company, 2020 CanLII 40331 (ON LAT) and RT v. Coseco Insurance 2019 CanLII 119804 ON LAT), decisions which I see no reason to divert from. I find that the applicant received the proper notice from the third party.
9Furthermore, the evidence before me supports the fact that the respondent accommodated the applicant’s schedule by re-scheduling both the OT and Psychiatry IE on numerous occasions between September 2020 and September 2021, as well as issuing new corresponding NOEs.
10Lastly, on review of the invoices, I am satisfied that the applicant has not attended any of the IEs scheduled by the respondent with respect to the subject accident. The respondent paid a no-show fee of $540.00 for the OT IE in September 2021, a no-show fee of $810.00 for the Physiatry IE in March 2021 and a no-show fee of $810.00 for the Physiatry IE in June 2021.
11The applicant submits that she is not required to provide an explanation or an “excuse” for failing to attend an IE because it was her position that the respondent had not provided a Schedule compliant notice. I am satisfied that the respondent provided appropriate notice.
12I find that the applicant has failed to act reasonably and in good faith with regard to her non-attendance at the IEs. She has not complied with s. 44 of the Schedule. Further, the applicant did not submit arguments as to the reason for her non-attendance. I find the applicant has fallen short of meeting her burden to establish a reasonable explanation for not attending a s. 44 IE.
13Accordingly, the applicant’s claims in the amount of $2,659.16 for OT services, $1,625.95 for chiropractic service, and $4,270.19 for OT services are statute-barred pursuant to s. 55(1)2 of the Schedule due to the applicant’s failure to attend properly scheduled and reasonably necessary s. 44 IEs.
14Since the applicant is statue-barred from proceeding with her benefit claims under s. 55, there is no need to refer this matter to a hearing on the substantive issues.
ORDER
15The applicant is statute-barred from proceeding with her application under s. 55 of the Schedule due to her failure to attend at properly scheduled s. 44 IEs.
16The application is dismissed.
Released: March 8, 2023
Monica Ciriello
Vice-Chair