Citation: Khan v. Allstate Insurance, 2023 ONLAT 21-003992/AABS

Licence Appeal Tribunal File Number: 21-003992/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:

Shila Khan

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Daniela Algieri-Boileau, Counsel

For the Respondent:

Wietske Felmore, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Shila Khan (“S.K.”), the applicant, was involved in an automobile accident on January 4, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). S.K. was denied benefits by the respondent, Allstate, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2Is S.K. statute barred pursuant to s. 55(1)(2) from proceeding with her claim for various medical benefits including a determination with respect to the Minor Injury Guideline (“MIG”) as she failed to attend IEs scheduled pursuant to s. 44 of the Schedule?

ISSUES

3The issues in dispute are:

i. Are S.K.’s injuries predominantly minor as defined in s. 3 of the Schedule and having consumed the $3,500.00 limit, in the MIG?

ii. Is S.K. entitled to $1,970.32 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan (OCF-18) dated May 24, 2019?

iii. Is S.K. entitled to $1,384.76 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in an OCF-18 dated August 14, 2019?

iv. Is S.K. entitled to $2,410.00 for a psychological assessment, proposed by Princeton Hills Medical in an OCF-18 dated March 22, 2019?

v. Is S.K. entitled to $2,670.00 for an orthopaedic assessment, proposed by Princeton Hills Medical in an OCF-18 dated March 22, 2019?

vi. Is S.K. entitled to $2,410.00 for a neurological assessment, proposed by Princeton Hills Medical in an OCF-18 dated April 6, 2019?

vii. Is S.K. entitled to interest on any overdue payment of benefits?

RESULT

4S.K. is statute barred from proceeding with her claim for medical benefits, including a determination with respect to the MIG, as she failed to attend properly scheduled s. 44 insurer examinations.

ANALYSIS

Is S.K.’s claim for benefits statute barred due to her non-compliance pursuant to s. 44?

5Section 55(1)2 of the Schedule sets out that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44, but the insured person has not complied with its request for attendance. I find that S.K. is statute barred from proceeding with her claim due to her non-compliance pursuant to s. 44 of the Schedule.

6In her submissions, S.K. did not address the issue of non-attendance, therefore, I rely on Allstate’s submissions and evidence of S.K.’s failure to attend the s. 44 insurer examinations (“IEs”).

7Allstate submits that proper notice was given in accordance with section 44(5) and (6) of the Schedule. Upon review of the notices, I find that notice was given more than 5 business days prior to the scheduled IEs (Notice of Examination dated April 21, 2021; Notice of Examination, dated June 4, 2021; and Notice of Examination, dated July 22, 2021). Medical reasons were provided, indicating that Allstate had insufficient medical evidence to support a finding that S.K. suffers from a physical or psychological impairment that prevents her from full recovery within the MIG as a result of the accident. The notices went on to advise that Allstate had insufficient medical evidence to support that S.K. suffered a substantial inability to perform the essential tasks of her employment or a complete inability to carry on a normal life as a result of the accident. In addition, the notices indicated that S.K. was subject to an IE pursuant to Section 44 of the Schedule. I find these to be adequate medical reasons and that Allstate complied with the requirements under s. 44(5) and (6) of the Schedule. S.K. failed to attend IEs scheduled on July 22, 2021 and August 16, 2021.

8Allstate’s position is that it would be unfair and prejudicial to it if S.K. is allowed to proceed with her dispute because she did not attend the IEs and her non-attendance prevented it from assessing whether the OCF-18s were reasonable and necessary and whether she sustained injuries or impairments that fall outside the MIG. It submits that it has a right under s.44 of the Schedule to assess whether she is entitled to the benefits claimed. It posits that procedural fairness dictates that Allstate be provided an opportunity to assess the benefits in dispute in order to properly adjust the file and prepare for the hearing.

9I agree with Allstate.

10S.K. has not directed me to any medical evidence or opinion that provides a reasonable explanation for her non-attendance at the requested IEs. Although provided with the opportunity to refute Allstate’s claims by way of a written reply, S.K. chose not to.

11S.K. is required to attend all reasonable and necessary IE assessments. I find that Allstate’s request for S.K. to attend s. 44 IEs meets the threshold of “reasonable and necessary”. S.K.’s failure to attend has prevented Allstate from properly adjusting her file and therefore appropriately assessing her ongoing entitlement to benefits.

12Section 55(2) provides that the Tribunal may permit an insured person to proceed with their application despite being statute-barred under s. 55(1)2. Pursuant to s. 55(3), the Tribunal may impose terms and conditions where permission is granted to proceed.

13I find that it is not appropriate that S.K.’s application be allowed to proceed under s. 55(2) because Allstate has not been provided the reasonable opportunity to fully assess her claims due to S.K.’s failure to attend properly scheduled IEs.

14S.K. has not provided any evidence or other support that she was not able to attend the IEs based on any limitations or other reasonable grounds.

ORDER

15S.K. is statute barred from proceeding with her claims for the disputed benefits as she failed to attend a properly scheduled s. 44 IEs.