Sandhu v. Dominion of Canada General Insurance Company (Travelers), 2023 CanLII 91467

Citation: Sandhu v. Dominion of Canada General Insurance Company (Travelers), 2023 ONLAT 21-004014/AABS

Licence Appeal Tribunal File Number: 21-004014/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:

Sandeep Sandhu

Applicant

and

The Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Pramod Kumar, Counsel

For the Respondent: Natalie Zamick, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Sandeep Sandhu, the applicant, was involved in an automobile accident on October 11, 2018, 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, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The respondent submits that the applicant failed to attend properly scheduled s. 44 insurer’s examinations (“IEs”). It seeks an order that the applicant be barred from proceeding with the substantive issues in dispute, and that the application be dismissed pursuant to s. 55(1)2 of the Schedule.

3As such, I must consider the preliminary issue, before turning to the substantive issues in dispute.

SUBSTANTIVE ISSUES

4The substantive issues in dispute are:

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 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to $2,680.00 for a chronic pain assessment, proposed by Complete Rehab Centre in a treatment plan (“OCF-18”) submitted to the respondent on May 25, 2020?

iii. Is the applicant entitled to $3,822.77 for psychological treatment, proposed by Medex Assessment Inc. in an OCF-18 submitted to the respondent on February 28, 2019?

iv. Is the applicant entitled to $2,260.00 for a psychological assessment, proposed by Medex Assessment Inc. in an OCF-18 submitted to the respondent on February 15, 2019?

v. Is the applicant entitled to $3,211.02 for physiotherapy and massage treatment, proposed by We Care Rehab Clinic in an OCF-18 submitted to the respondent on July 5, 2021?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5With respect to the preliminary issue, I find the applicant is statute-barred from proceeding with the issues of the Minor Injury Guideline, and the treatment plans listed as issues 4(ii) to (iv) above, due to non-attendance at scheduled insurer’s examinations, pursuant to s. 55(1)2 of the Schedule.

6With respect to the remaining treatment plan for physiotherapy and massage services, listed as issue 4(v) above, I find that the applicant has not established that it is reasonable and necessary. As no benefits are payable, no interest is owing.

PRELIMINARY ISSUE

Non-Attendance at s. 44 examinations

7I find that the applicant is barred from proceeding with the issues of the Minor Injury Guideline and treatment plans for a chronic pain assessment, psychological assessment and psychological treatment (issues 4(i)-(iv) as listed above), due to her non-attendance at scheduled IEs.

8Section 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.

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. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE.

10The respondent submits that the applicant failed to attend reasonably necessary psychological and physiatry IEs, scheduled to assess the issues of the applicant’s removal from the MIG, and the OCF-18s for the chronic pain assessment, psychological assessment and psychological treatment. It submits that it has rescheduled these IEs multiple times, due to non-attendance and a request from the applicant’s counsel. As a result of such non-attendance, the respondent argues that it is significantly prejudiced in its ability to assess the applicant.

11The applicant does not dispute that she failed to attend the scheduled IEs. Nor has the applicant provided any submissions disputing that the proposed IEs were reasonably necessary. Rather, the applicant submits that they had been scheduled at a time when it was not convenient to attend. She contends that the IEs scheduled in 2019 were during a period that the applicant was a “recluse” and was recovering from a miscarriage. Further, the 2020 IEs were in person and during the pandemic and as such, the applicant submits that given that she was a high-risk patient, her doctor had advised her not to attend any in-person IEs. However, she submits that after this period, she had been willing to attend IEs, but that the respondent refused to reschedule them. The applicant further argues that the respondent’s correspondence and notices of examination are non-compliant, as they do not provide a medical reason as required by. 44(5) the Schedule.

12I agree with the respondent that the applicant failed to attend reasonably scheduled IEs without reasonable explanation. I further find that the correspondence from the respondent was compliant with s. 44(5) of the Schedule.

13In 2019, the applicant failed to attend scheduled and rescheduled psychological IEs, on April 23, 2019 and August 1, 2019. The applicant submits that her non-attendance was due to the fact that during this period, she had become a “total recluse and was avoiding contact with the outside world” due to her November 2018 miscarriage. However, I agree with the respondent that during this period, she attended her s. 25 psychological assessment, on February 13, 2019. Moreover, the applicant does not provide any correspondence indicating that this reason was communicated to the respondent, or that she had attempted to reschedule the IEs. Given that the applicant was able to attend her own psychological assessment in 2019, I do not find the explanation that she had become a “total recluse”, to be persuasive or supported by the record.

14In 2020, the applicant failed to attend psychological IEs that had been scheduled for September 30, 2020 and December 21, 2020. She further failed to attend physiatry IEs that had been scheduled for September 12, 2020 and December 28, 2020. The applicant submits that this non-attendance was due to the fact that she was pregnant and that her doctor had advised her that she was a high-risk patient due to her previous miscarriages and diabetes.

15However, the applicant has not submitted any correspondence that she communicated these reasons to the respondent, or provided any evidence from her doctor that she had been deemed a high risk patient. In its submissions, the respondent stated that at no point has the applicant offered any reasonable explanation for non-attendance. Further, the applicant did not dispute the respondent’s submissions that her daughter was born in July 2020. As such, it does not appear that the applicant was pregnant during these scheduled IEs in September and December 2020. In her submissions, the applicant states that “after this period” she advised the respondent that she was ready to participate in IEs. However, no evidence was provided by the applicant in support of this claim.

16In its letters dated August 2, 2019, September 30, 2020 and December 31, 2020, the respondent advised the applicant that given the multiple non-attendances, it would not be rescheduling IEs until it received written correspondence from the applicant that she was willing to attend and participate in IEs. The applicant has not submitted any evidence that she provided such written confirmation. Although she states in her submissions that she communicated such readiness to the respondent, no evidence was provided in support of this claim. It is well-settled that submissions alone are not evidence. Rather, evidence must be provided in support of a claim. Further, the applicant did not provide any specific details as to how or when this readiness was communicated to the respondent. As such, I agree with the respondent that the applicant failed to provide a reasonable explanation for her non-attendance at properly scheduled IEs.

Notices of Insurer’s Examination

17I find that the respondent’s notices of examination and correspondence were compliant with s. 44(5) of the Schedule.

18In letters dated March 20, 2019, March 25, 2019 and June 3, 2020, the respondent stated that upon review of the limited documentation received to date, it had concluded that the applicant’s injuries were predominantly minor. It noted that the applicant’s spouse and the OCF-1 did not report any injuries sustained in the accident. The respondent further referenced its s. 33 letters and noted that it had requested medical releases in order to obtain the needed medical documentation. The respondent’s previous s. 33 requests had included medical releases to obtain the pre and post-accident clinical notes and records (“CNRs”) of the applicant’s family physician. The correspondence stated that it had not received these releases or documents to date and that it would be scheduling IEs.

19I find that the respondent’s reasons were clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to attend the IEs in dispute. The letters clearly referenced what information the respondent did not have, but still required from the applicant. It noted the s. 33 letters it had sent previously, and that it had not received the medical releases and documentation to date. The respondent further noted that the applicant’s spouse, and the OCF-1 did not identify any accident-related injuries. Although in her submissions the applicant argues that she sent the clinical notes and records of her family physician and OHIP summaries to the respondent, I note that the production emails were dated February, May and June 2022, three years after the releases were initially requested and two to three years after the OCF-18s were submitted.

20Given that the notices of examination were compliant, and that the applicant did not provide a reasonable explanation for her non-attendance, I agree with the respondent that s. 55(1)2 of the Schedule is applicable and that the applicant is statute-barred from proceeding with the issues of the Minor Injury Guideline, OCF-18 for the chronic pain assessment, OCF-18s for a psychological assessment and psychological treatment. Although s. 55(2) permits the Tribunal to allow an insured to apply for benefits despite being non-compliant with s. 44, I decline to exercise my discretion because the applicant has not put forward a reasonable explanation for her non-attendance.

SUBSTANTIVE ISSUES

21The respondent had requested IEs to address the issues of the applicability of the Minor Injury Guideline, OCF-18 for the chronic pain assessment, OCF-18s for a psychological assessment and psychological treatment. However, I note that the respondent did not request an IE assessment for the final OCF-18 dated July 5, 2021 for physiotherapy services. As such, the applicant is not barred from proceeding with this substantive issue in dispute.

OCF-18 submitted July 5, 2021 for physiotherapy services is not reasonable and necessary

22The applicant submitted an OCF-18 in the amount of to $3,211.02 for physiotherapy and massage treatment. However, the applicant has provided limited submissions or evidence as to why the proposed treatment is reasonable and necessary. I agree with the respondent that the medical record establishes that the applicant sustained only strain and sprain type injuries as a result of the accident. Further, the physiotherapy records of Complete Rehab indicate only a few visits in October 2018 and March 2019. No explanation was provided by the applicant as to why physiotherapy treatment is again required more than two years after her last session.

23The clinical notes and records of the applicant’s family physician do not indicate that she attended at his offices in the years post-accident to seek any treatment for an accident-related impairment or with pain complaints. The applicant relies in large part on a s. 25 chronic pain assessment of Dr. Karmy dated March 31, 2022. However, I agree with the respondent that Dr. Karmy did not review the updated clinical notes and records of the applicant’s family physician, which would have reflected the lack of reporting of accident related impairments and pain complaints post-accident. Although Dr. Karmy’s report was dated March 2022, he did not review any CNRs post October 2019. Given the lack of accident-related impairments reflected in the medical record, I do not find that the applicant has led sufficient evidence to establish that the proposed physiotherapy treatment, almost three years post-accident, is reasonable and necessary.

24The applicant’s alternative argument is that the OCF-18 should be payable, as the respondent’s denial letter was sent outside of the 10 days stipulated by s. 38(8) of the Schedule. As such, she submits that the OCF-18 should be payable pursuant to s. 38(11). I disagree. The parties agree that the OCF-18 was submitted on July 5, 2021 and was denied on July 16, 2021. Section 38(8) states that an insurer’s denial must be provided within “10 business days”, not 10 calendar days. As such, the respondent’s denial was well within the 10 business days time limit required by the Schedule.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.

ORDER

26I find that:

i. The applicant is statute-barred from proceeding with the issues of the Minor Injury Guideline, and the OCF-18s for a chronic pain assessment, psychological assessment and psychological treatment, due to non-attendance at scheduled insurer’s examinations, pursuant to s. 55(1)2 of the Schedule.

ii. The applicant is not entitled to the OCF-18 for physiotherapy services. As no benefits are payable, no interest is owing.

iii. The application is dismissed.