Schleifer v. Unifund Assurance Company, 2023 CanLII 72664

Citation: Schleifer v. Unifund Assurance Company, 2023 ONLAT 22-007262/AABS - PI

Licence Appeal Tribunal File Number: 22-007262/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:

Monica Schleifer

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Gary R. Will, Counsel

For the Respondent: Ken Yip, Counsel

HEARD: By Way of Written submissions

OVERVIEW

1Monica Schleifer, the applicant, was involved in an automobile accident on October 10, 2019, 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, Unifund Assurance Company, 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 because of non-compliance with section 44 insurer's examinations ("IEs") per section 55 of the Schedule?

RESULT

3The applicant is not barred from proceeding with her application.

ANALYSIS

Sections 44 and 55 of the Schedule

4Section 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.

5Section 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 section 44, but the insured person has not complied.

6Section 55(2) states that the Tribunal may permit an insured person to apply to it, despite paragraphs 2 and 3 of section 55(1).

Non-attendance at s. 44 assessments

7The respondent submits that the applicant failed to attend a number of IE assessments, that had been scheduled to assess the applicant's eligibility for attendant care benefits ("ACBs") and for the purposes of a catastrophic impairment ("CAT") determination. With respect to ACBs, occupation therapy ("OT") assessments had been scheduled and re-scheduled for January 18, 2021 and March 26, 2021. A neurological IE had been scheduled for February 22, 2021. The respondent submits that the applicant failed to attend any of these IEs. The respondent further notes that the applicant has reached the non-CAT monetary limit of $65,000 for medical and rehabilitation benefits and ACBs.

8With respect to CAT determination, the respondent submits that the applicant failed to attend psychological IEs scheduled for October 24, 2022, January 17, 2023 and April 25, 2023. OT assessments were also scheduled for October 18, 2022 and March 14, 2023, which the respondent submits the applicant also failed to attend.

9The respondent further submits that at the case conference on April 12, 2023, the applicant indicated that she would not attend any IEs.

10The applicant does not dispute that she failed to attend these previously scheduled IEs. However, the applicant submits that she has attended two of the four newly re-scheduled IEs. The applicant submits a letter from the respondent dated July 5, 2023, with Notices of Examination for four IEs to address CAT determination. Two OT IEs were scheduled for July 19, 2023 and July 20, 2023, and two psychological IEs were scheduled for September 13, 2023. The applicant submits that she attended both OT IEs on July 19, 2023 and July 20, 2023. The applicant further states that she will make reasonable and good faith efforts to attend the September 13, 2023 psychological and neuropsychological IEs. As such, the applicant requests that despite her prior non-compliance, she be permitted to proceed to a hearing pursuant to s. 55(2) of the Schedule.

11I find that the applicant may proceed with her application. Denying the applicant's ability to adjudicate the claim relating to an alleged catastrophic impairment, ACBs, and treatment plans would be unduly prejudicial and contrary to procedural fairness, pursuant to Rule 3.1(a) of the LAT Rules. Particularly in these circumstances where the applicant has now attended half, two of the four scheduled IEs, and has indicated her intention to attend the remaining two IEs scheduled for September 13, 2023.

12Although in its submissions the respondent argued that the applicant had failed to attend any of the rescheduled IEs, this does not appear to be the case. The respondent's submissions were dated July 17, 2023, which was prior to the dates of the newly rescheduled IEs. The correspondence dated July 5, 2023 submitted by the applicant, indicates that the respondent had rescheduled the outstanding IEs for July 19, 2023, July 20, 2023 and September 13, 2023. It appears that the applicant has now attended the two IEs scheduled in July 2023 and will attend the remaining two September 13, 2023 IEs.

13Despite having the right of reply, the respondent did not provide reply submissions rebutting the applicant's argument that she has attended the July 2023 IEs. Nor did the respondent dispute the applicant's position that she is currently compliant with the timeline for the rescheduled IE assessments proposed by the respondent in its July 5, 2023 letter.

14Given the applicant's current compliance with the re-scheduled IE attendance, I find that the applicant is not precluded from applying to the Tribunal.

ORDER

15The applicant may proceed with her application before the Tribunal.