24-005920/AABS-PI
Licence Appeal Tribunal File Number: 24-005920/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:
Marialena Da Rosa
Applicant
and
Onlia Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Nicholas P. Mester, Counsel
For the Respondent: Abdullah Yakub, Counsel
Heard: By way of written submissions
OVERVIEW
1Marialena Da Rosa (the “applicant”) was involved in an accident on April 29, 2022, 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 Onlia Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant is disputing the applicability of the Minor Injury Guideline, entitlement to a treatment plan for physiotherapy, and interest. The respondent raised a preliminary issue to be addressed in advance of the substantive issues.
PRELIMINARY ISSUE IN DISPUTE
3Is the applicant barred from proceeding to the hearing for all the benefits claimed in this application because the applicant failed to attend insurer’s examinations (“IE”) under s. 44 of the Schedule?
RESULT
4The applicant is barred from proceeding with her application under s. 55 of the Schedule, as she failed to attend IEs under s. 44.
ANALYSIS
The law
5Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE.
6Section 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.
7Sections 55(3) and (4) of the Schedule provide that, despite section 55(1)2, the Tribunal may still permit the application to proceed, with or without terms.
Parties’ positions
8Upon receipt of the disputed treatment plan, the respondent sent a notice to the applicant refusing to pay the benefit and requested that the applicant attend at IEs. Examinations were scheduled with a general practitioner and a psychologist.
9The respondent submits that the applicant failed to attend at properly scheduled IEs and should therefore be barred from proceeding with her application under s. 55.
10The applicant acknowledges she did not attend the IEs, nor does she dispute the validity of the notices. The applicant submits that she should be permitted to proceed with her application because her mental health condition at the time rendered her unable to attend at the IEs.
11The applicant submits that she had been dealing with anxiety and depression exacerbated by the accident, and that her mindset at the time made it impossible for her to attend the IEs. The applicant refers to records that indicate that she was participating in cognitive behavioural therapy, taking medications, and was referred to a psychiatrist. However, the applicant did not put any of this evidence before the Tribunal in support of her submissions. She did not include any of the clinical notes and records evidencing such a diagnosis, medications, or referrals. Submissions alone are not evidence.
12In the absence of evidence, the applicant has failed to establish that she had a medical condition that rendered her unable to attend IEs. I therefore decline to use my discretion to permit the application to proceed.
ORDER
13The applicant is barred from proceeding with her application under s. 55 of the Schedule for failing to attend insurer examinations.
14The application is dismissed.
15The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: October 21, 2024
___________________________
Kate Grieves
Adjudicator