Citation: Wolters v. The Commonwell Mutual Insurance Group, 2024 ONLAT 22-014023/AABS

Licence Appeal Tribunal File Number: 22-014023/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:

Charles Wolters

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Nicholas Whelan, Paralegal

For the Respondent:

Cecil Jaipaul, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Charles Wolters, the applicant, was involved in an automobile accident on December 10, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, The Commonwealth Mutual Insurance Group, and applied to the Licence Appeal Tribunal –Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

3The preliminary issue to be decided is:

i. Is the applicant barred from proceeding on all issues in dispute because he failed to attend s. 44 assessments?

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 Minor Injury Guideline limit?

ii. Is the applicant entitled to the treatment proposed by Mackenzie Medical Rehabilitation Centre as follows:

1. $3,795.50 for physical therapy services, in a treatment plan submitted on January 5, 2021?

2. $230.50 ($1,300.00 less $1,069.50 approved) for physiotherapy services, in a treatment plan submitted on March 9, 2021?

3. $2,026.55 for physical therapy services, in a treatment plan submitted on May 25, 2021?

4. $1,417.70 for physical therapy services, in a treatment plan submitted on June 29, 2021?

5. $2,635.40 for physical therapy services, in a treatment plan submitted November 2, 2021?

iii. Is the applicant entitled to the treatment proposed by 101 Assessments as follows:

1. $2,460.00 for a psychological assessment, in a treatment plan submitted on April 28, 2021?

2. $1,950.00 for social work services, in a treatment plan submitted on January 31, 2022?

3. $2,460.00 for a neurological assessment, in a treatment plan submitted on January 31, 2022?

4. $2,460.00 for a chronic pain assessment, in a treatment plan submitted January 31, 2022

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

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

5The applicant is barred from proceeding to a hearing on the issues in dispute as a result of his failure to attend the s. 44 assessments.

ANALYSIS

The applicant is barred from proceeding to a hearing on the issues in dispute because he failed to attend s. 44 assessments

6I find that the applicant is barred from proceeding to a hearing on the issues in dispute because he failed to attend the s. 44 assessments and he did not provide a reasonable explanation for his non-attendance.

7Section 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.

8The requirements for a Notice of Examination (“NOE”) are set out in s. 44(5) of the Schedule:

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.

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 with its request for attendance.

10The NOE dated August 26, 2022, sets out that the following assessments were scheduled by the respondent to assess the applicability of the MIG, entitlement to medical and rehabilitation benefits and entitlement to an IRB:

i. Orthopaedic Surgery Assessment by Dr. Esmat Dessouki, orthopaedic surgeon, dated September 14, 2022

ii. Psychology Assessment by Dr. Kelly McCutcheon, psychologist, dated September 21, 2022

iii. Functional Abilities Evaluation by Mr. Shane Graham, physiotherapist, and Treena Terry, Kinesiologist, dated September 23, 2022

iv. Neurology Assessment by Dr. Robert Yufe, neurologist, dated October 11, 2022

11The respondent submits the applicant should be barred from proceeding with his claim for benefits because he failed to attend the scheduled s. 44 assessments and he did not provide a reason for this failure to attend. It argues that the NOE was proper pursuant to s. 44(5) of the Schedule, including the medical and any other reasons required for the assessments. The NOE to the applicant indicated that his attendance was required and included the assessor’s name and specialty, and the date, time and location of the assessments. The respondent points specifically to the letters of August 26, 2022 and August 29, 2022 as evidence.

12The applicant did not provide any initial submissions on the preliminary issue. In his reply submissions, he states that the respondent did not provide a fax confirmation to ensure that the letters and NOE were received by the applicant. He further submits that the IE was only scheduled once and does not appear to be rescheduled which is prejudicial to the applicant. The applicant has not directed me to any legal authority with respect to his argument.

13I find that the NOE was proper and that the applicant’s failure to attend these assessments bars him from proceeding with this claim.

i. Firstly, I am satisfied that the NOE provided comprehensive reasons which satisfy the Schedule requirements. In the August 26, 2022 and August 29, 2022 letters, the respondent indicates that the medical documentation on file is insufficient to determine the applicability of the MIG, necessitating further investigation, which I find to be sufficient reasoning.

ii. Secondly, I find it relevant that the applicant did not provide the respondent with a reason for his non-attendance. The purpose of s. 44(5) (a) of the Schedule, is to protect an insured from unreasonable assessments, not to provide a shield for an applicant that did not attend. The applicant provided no evidence to suggest that he viewed these assessments as unreasonable.

iii. Thirdly, I find that the NOE and letters dated August 26, 2022 and August 29, 2022, were sent directly by mail to the applicant and his counsel was copied. There is no evidence before me that the applicant’s address or counsel’s fax number was incorrect.

iv. Fourthly, I find that the assessments scheduled by the respondent were reasonable and necessary pursuant to s. 44(1) of the Schedule to assess whether the applicant’s injuries were predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit.

14The applicant has advised that the MIG limits have been exhausted. I find that where the applicant has not provided a reasonable explanation for his non-attendance, it follows that he is statute barred from proceeding with his claim for the proposed treatment plans in dispute under s. 55(1)2 of the Schedule.

ORDER

15For the reasons outlined above, I find that the applicant is barred from proceeding to a hearing on the issues in dispute as a result of his failure to attend the s. 44 assessments. The application is dismissed.