Forat Jaroo v. Economical Mutual Insurance Company, 2023 CanLII 7285

21-007571/AABS – PI-(A)

Licence Appeal Tribunal File Number: 21-007571/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:

Forat Jaroo

Applicant

and

Economical Mutual Insurance Company

Respondent

AMENDED PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Forat Jaroo, Applicant

Parinita Yadav, Articling Student

Pallavi Chandrasekhar, Articling Student

Maziar Mortezaei, Counsel

For the Respondent:

Chris Metcalf, Representative

Alexander Dos Reis, Counsel

HEARD:

By Way of Written Submissions

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 June 28, 2019.

ISSUE IN DISPUTE

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

1. Is the applicant barred from a hearing for the following benefit(s) because the applicant failed to attend an insurer’s examination?

(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.

(ii) Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from August 28, 2019 to June 25, 2021?

(iii) Is the applicant entitled to $3,305.30 for chiropractic and massage therapy treatment, proposed by Health-Pro Wellness in a treatment plan/OCF-18 (“plan”) dated November 19, 2019?

(iv) Is the applicant entitled to $2,197.29 for a psychological assessment, proposed by Health-Pro Wellness in a treatment plan submitted on December 4, 2019, and denied on December 14, 2019?

RESULT

3I find that the applicant is not statute-barred from proceeding with his application before the Tribunal.

ANALYSIS

Parties’ positions

4The respondent submits that the applicant is statute barred because he failed to attend reasonable and properly scheduled s. 44 insurer examinations (“IEs”) by Dr. Eric Silver, general practitioner.

5The applicant submits he should not be barred from proceeding with his application because the respondent failed to comply with section 44(9)(2)(i) of the Schedule. Moreover, the notices of examination were ambiguous and did not specify details about the applicant’s conditions forming the basis for the respondent’s decision.

Failure to attend the insurer examinations (“IEs”)

6Section 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.

7The 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.

8Section 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.

9Section 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.

10Taking 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.

11On November 26, 2019, the respondent wrote to the applicant regarding the NEB. The respondent makes reference to the applicant’s medical conditions and provides reasons as to why it is not clear that he suffers from a complete inability to carry on a normal life. The respondent informed the applicant that IEs would be arranged.

12On December 4, 2019, the respondent wrote to the applicant to notify him that they have had made arrangements for the IE in relation to the NEB with Dr. Silver and Ms. Margaret Ramsay, occupational therapist. The IE with Dr. Silver was scheduled for December 17, 2019, and the IE with Ms. Ramsay was scheduled for January 7, 2020. The medical reasons are detailed. The notice makes reference to the applicant’s medical conditions and provides sufficient reasons. The information regarding the IE and the assessors are provided.

13It also notes that there is no compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident, that would prevent him from achieving maximal recovery. Furthermore, there is no further indication of any ongoing emotional or psychological impairments or recommendations for treatment. The respondent states that more details would be provided at a later date, and that they would work with the applicant to schedule the examination for a day, time and location that is convenient for him.

14On December 16, 2019, the respondent wrote to the applicant to notify him that they have had made arrangements for the IE in relation to the treatment plans for chiropractic and massage therapy and the psychological assessment. The medical reasons are detailed. The notice makes reference to the applicant’s medical conditions. The notice outlines the applicant’s conditions and why the respondent believes that the MIG applies. The applicant did not attend the GP IE on December 17, 2019.

15On December 19, 2019, the respondent wrote to the applicant regarding the IE that was being scheduled with Dr. Silver on January 14, 2020 in relation to the treatment plans for the psychological assessment, chiropractic and massage treatment. The notice outlines the applicant’s conditions and why the respondent believes that the MIG applies. Moreover, it also notes that the applicant missed the IE for NEB that was scheduled on December 17, 2019, and that it would be addressed at this IE. The notice provides details about the IE assessor and the assessment.

16On the same day, the applicant’s legal representative sent a letter notifying the respondent that the applicant was unable to attend the IE that was scheduled on December 17, 2019. He requested that it be rescheduled for any Monday after 2:00p.m.

17On January 21, 2020, the respondent notified the applicant that he did not attend the rescheduled IE that was scheduled for January 14, 2020. It determined that the applicant was not entitled to the NEB, and that the respondent would provide funding for goods and services that are provided in accordance with the MIG.

18As of March 23, 2020, the applicant remained non-compliant with respect to the general practitioner IE with Dr. Silver, which was to address the NEB, the MIG and the treatment plans. The applicant was informed that he was to reach out if he wished to reschedule the IE.

19I have reviewed the notices of examination and find that they were compliant with section 44(5) of the Schedule as they were clear and sufficient enough to allow an unsophisticated person to make an informed decision to attend the insurer examination or dispute it. As a result, I agree with the respondent that the circumstances in s. 55(1)2. of the Schedule exist. I now turn to whether I should grant relief to the applicant under ss. 55(2) and (3) of the Schedule.

Does s. 55(2) apply to the applicant?

20Section 55(2) of the Schedule permits the Tribunal to allow an insured to apply for dispute resolution despite being non-compliant with s. 44. Section 55(3) of the Schedule provides that the Tribunal may impose terms and conditions on any permission granted.

21On December 19, 2020, the respondent informed the applicant that the IE was scheduled for January 14, 2020 at 1:45p.m. In a letter dated December 19, 2019, the applicant’s legal representative requested that the GP IE be rescheduled on a Monday after 2:00 p.m.

22The respondent did not reschedule the GP IE. Rather, the respondent informed the applicant on January 21, 2020 that he did not attend the GP IE on January 14, 2020, and that if he wished to have his GP IE rescheduled, he was to have his legal representative reach out and confirm his availability. There is nothing in the evidence that this happened.

23In my view, the respondent had a duty to make reasonable efforts to schedule the examination for a day, time and location that was convenient for the applicant as per s. 44(9)(2)i of the Schedule. The applicant’s legal representative communicated that the GP IE needed to take place on Monday after 2:00p.m. There is no evidence that the applicant’s request to the respondent that the GP IE be scheduled on a Monday was an unreasonable one. The respondent did not make an effort to schedule the GP IE on the date that was requested. Nor is there any evidence as to why the IE could not be scheduled on a Monday. Moreover, if the GP IE was required by the respondent in order to adjust the file, then arrangements to schedule another one should have been made.

24Based on the evidence before me, I find that the applicant was placed in a situation where he was set to fail despite communicating his needs. This is unreasonable. As such, I am exercising my discretion to allow this matter to proceed with terms because I find that the applicant has put forth a reasonable explanation for his non-attendance at the IEs.

25The applicant must attend the GP IE so that the respondent can assess his entitlement to the medical benefits in dispute.

26The respondent shall provide the applicant with a notice of a GP IE within 14 business days after the release of this decision. The respondent shall schedule the GP IE within 60 days after the release of this decision. Any notice of the GP IE must also be provided to the applicant’s legal counsel. The applicant will provide the respondent with his updated availability for the GP IE.

ORDER

27For the reasons above, the applicant may not proceed with his appeal until he meets the conditions imposed above pursuant to section 55(3) of the Schedule.