Dankha v. Intact Insurance Company, 2023 CanLII 81828

Licence Appeal Tribunal

Citation: Dankha v. Intact Insurance Company, 2023 ONLAT 21-013046/AABS -PI Licence Appeal Tribunal File Number: 21-013046/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:

Manweel Dankha Applicant

and

Intact Insurance Company Respondent

PRELIMINARY ISSUE DECISION

ADJUDICATOR: Theresa McGee, Vice-Chair

APPEARANCES:

For the Respondent: Robbie Brar, Counsel

For the Applicant: Crystal Watson, Counsel

HEARD: By way of written submissions

OVERVIEW

1Manweel Dankha, the applicant, was involved in an automobile accident on July 26, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent has raised a preliminary issue. This hearing is to decide that preliminary issue.

PRELIMINARY ISSUE

3The preliminary issue to be decided is as follows:

i. Is the applicant barred from proceeding with his claim as he failed to submit to insurer examinations under section 44 of the Schedule?

RESULT

4The applicant is barred from proceeding with his claims for a catastrophic impairment determination and an income replacement benefit under s. 55 of the Schedule.

5The respondent has not established that the applicant failed to attend insurer’s examinations for a chronic pain assessment or an attendant care benefit, and his claims for those benefits are not barred under s. 55.

6This matter shall proceed to a hearing on the issues of a chronic pain assessment, an attendant care benefit, interest, and an award.

ANALYSIS

The applicant failed to attend properly requested Insurer’s Examinations (IEs)

7Section 44(1) of the Schedule provides that an insurer may require an insured person to attend an examination to determine entitlement to a benefit. Notice of the examination must be given in accordance with s. 44(5) and (6). Failure to comply with a s. 44 request may result in the insured person being barred under s. 55(1)2 from proceeding with an application at the Tribunal application.

8The applicant seeks the following benefits/determinations in this application:

i. a determination that he is catastrophically impaired;

ii. $3,028.40 for a chronic pain assessment, submitted December 18, 2019 and denied January 2, 2020;

iii. a monthly attendant care benefit of $6,268.12 from December 14, 2020 to date and ongoing;

iv. a weekly income replacement benefit of $189.00 per week from July 13, 2018 to date and ongoing;

v. an award for unreasonably withheld or delayed payments; and

vi. interest on any overdue unpaid benefits.

9I find that the applicant failed to comply with the respondent’s requests for IEs in relation to certain benefits in dispute. Although the applicant submits that the respondent failed to set dates and times for some examinations that were convenient to him as required under s. 44(9)(2) of the Schedule, he does not dispute that the Notices of Examination the respondent provided to him otherwise complied with the notice requirements set out in s. 44(5) and (6) of the Schedule.

10The respondent has established that it requested IEs in relation to catastrophic impairment and an income replacement benefit that the applicant failed to attend without reasonable explanation. However, the respondent has not shown that the applicant failed to attend IEs to assess entitlement to the chronic pain assessment or an attendant care benefit.

11Catastrophic impairment: I find that the applicant failed to attend four IEs to determine whether he is catastrophically impaired. The first was an orthopaedic IE scheduled for December 3, 2021. The second was a psychological IE scheduled for December 16, 2021. The applicant’s representative advised the respondent that the applicant would not be attending this IE “on the advice of his GP”, which I take to mean the advice of his s. 25 assessor, Dr. Alyman, as there is no evidence from the applicant’s General Practitioner making such a recommendation. Catastrophic impairment IEs were also scheduled for January 17, 2022 and February 1, 2022, and there is no evidence that the applicant attended these assessments.

12Chronic pain assessment: The respondent has not shown that it requested an IE in relation to the disputed chronic pain assessment which it denied on January 2, 2020. The evidentiary record contains no Notice of Examination specifically identifying the chronic pain assessment, and the respondent has made no submissions that the applicant failed to attend an IE in relation to this benefit.

13Income replacement benefit: I find that the applicant failed to attend at least four IEs in relation to his ongoing entitlement to an income replacement benefit, including IEs scheduled for September 29, 2020, October 9, 2020, October 13, 2020, and November 4, 2020.

14Attendant care benefit: The applicant’s claim for an attendant care benefit commenced on December 14, 2020. The respondent has not shown that it requested an IE in relation to this benefit.

The applicant has offered no reasonable explanation for non-attendance at IEs

15I do not accept the applicant’s submissions that there were reasonable explanations for his non-attendance at the relevant IEs, and that some instances of non-attendance were beyond his control. He submits that he did not attend some of the IEs because of challenges he faced in communicating with the respondent. He further submits that his non-attendance at some IEs was based on medical advice. He submits that the respondent failed to make reasonable efforts to schedule IEs at a convenient time and location under s. 44(9)(2)(i). I reject these arguments as they are either unsupported by the evidence, or they are not linked to the periods when the IEs in question were scheduled to occur.

16Communication challenges: The applicant’s evidence shows that the respondent’s adjuster was unresponsive to repeated attempts by his representative to reach her in August 2019. The evidence shows that the applicant’s representative resorted to contacting the insurer’s ombudsman and the adjuster’s supervisor to communicate about the applicant’s claim. Several weeks later, on September 24, 2019, the adjuster acknowledged receipt of the applicant’s medical records by email and confirmed that she had reviewed them. The applicant has not tendered evidence to show that the communication challenges he experienced in the summer of 2019 extended into any of the periods when the IEs in issue were being scheduled. The applicant’s submissions on this point are unhelpful in explaining his non-attendance at the relevant IEs.

17Medical advice: In a Psychological Consultation Report dated December 31, 2020, Dr. Alyman advised against the applicant’s participation in IEs due to his fragile mental health status. There is no evidence the applicant was under medical advice not to attend IEs in September, October, or November 2020, when he failed to attend the IEs to determine his ongoing entitlement to an income replacement benefit.

18First, the applicant relies on Dr. Alyman’s report as justification for not attending catastrophic impairment IEs requested in October 2021, almost a year after the report was issued. The applicant has not tendered contemporaneous medical evidence justifying his non-attendance at the catastrophic impairment IEs. Second, Dr. Alyman’s clinical observations that the applicant needed assistance in completing psychometric questionnaires and could only tolerate one-hour interviews do not support her conclusory finding that the applicant “should not be put through the rigors of any form of IE assessments” (emphasis added). Third, I fail to see how Dr. Alyman’s offer to put questions from the insurer’s experts to the applicant herself, allowing the respondent’s experts to conduct their own paper review, would better serve the applicant’s needs than those experts’ direct assessment of the applicant, given that Dr. Alyman is not the applicant’s treating practitioner. According to her report, Dr. Alyman’s contact with the applicant is limited to her encounters with him (directly or through her psychometrist) on October 8 and November 17, 2020.

19I find the respondent approached the scheduling of catastrophic IEs in a manner consistent with Dr. Alyman’s suggestion of “some sort of compromise” or an “alternative line of investigation” into the applicant’s impairments. The respondent initially scheduled the IEs for December 3, 2021, December 16, 2021, January 17, 2022, and February 1, 2022, leaving significant breaks between assessments. The applicant submits that the respondent’s approach has been “rigid” and that he has attempted to “collaboratively discuss the best course of action” with the respondent. These assertions, made at paragraph 34 of the applicant’s submissions, are not supported by evidence. Instead, the record contains emails sent by the applicant’s representative to the applicant on May, 10, 2022 explaining the importance of attending IEs, and from the applicant’s representative to the respondent on May 11, 2022, requesting that assessments be scheduled several days apart to accommodate the applicant’s needs. It is apparent from these exchanges that the applicant was not made aware by his representative until May 10, 2022 (or at minimum, until the March 8, 2022 case conference) that attending IEs was necessary for the respondent to properly assess his claim for catastrophic determination. It is also apparent that the respondent’s prior efforts to pace the IEs would have adequately conformed to the applicant’s need to recover in between assessments.

20Reasonable attempts to schedule convenient IEs: The applicant has not demonstrated that the respondent failed to schedule IEs for dates and times that were convenient for him. Instead, the evidence shows attempts on the part of the respondent to pace the scheduling of its catastrophic impairment IEs to accommodate the applicant’s medical fragility.

I decline to exercise my discretion to permit the application to proceed under s. 55(2) of the Schedule

21The applicant submits that I should exercise my discretion under s. 55(2) of the Schedule to permit him to apply despite his non-attendance at IEs. I decline to do so, as I find that the applicant had no justification for failing to attend the IEs in question. The evidence supports a finding that the applicant’s refusal to attend several IEs was made on the advice of his legal representative. “No-show” letters from assessment companies dated January 21, 2020 and July 6, 2020 refer to the applicant stating that he was advised by his lawyer not to attend and that his lawyer had told him all assessments had been cancelled. This evidence is unopposed.

22As I have already found, the applicant was not under Dr. Alyman’s advice not to attend IEs until December 31, 2020. His no-shows for the IRB IEs were unrelated to any medical advice evidenced in the record before me. The CAT IE no-shows are equally unexplained by Dr. Alyman’s advice. Dr. Alyman’s clinical observations about the applicant’s limited interview tolerance support the need for a compromise in the manner IEs are conducted, but they do not support a complete refusal to attend the catastrophic IEs scheduled by the respondent in late 2021 and early 2022.

23The record ultimately shows that the catastrophic IEs were paced appropriately and in a manner that accounted for the applicant’s limited tolerance for stress. The respondent offered this accommodation in the absence of more contemporaneous medical advice and without any demonstrated effort on the part of the applicant’s representative to actively engage with the IE scheduling process to reach the recommended compromise. Further, the evidence suggests that the applicant only learned of the importance of IE attendance in March 2022, at the case conference, or in May 2022, when his representative advised him of the same. The advice of a legal representative not to attend IEs is not a reasonable basis for failing to attend reasonably requested assessments. Nor is belated advice on the importance of attending s. 44 assessments, offered well after those assessments have passed.

ORDER

24The applicant is barred from proceeding with his claims for catastrophic impairment determination and an income replacement benefit. This matter shall proceed to a hearing on the applicant’s claim for a chronic pain assessment, attendance care benefits, interest, and an award.

25The Tribunal will contact the parties to set the date of the hearing.