Licence Appeal Tribunal File Number: 22-011664/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:
Yubo Liu
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Julianne Brimfield, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Yubo Liu, the applicant, was involved in an automobile accident on September 8, 2020, 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 Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The respondent brought a motion for an order barring the applicant from proceeding to a hearing regarding the Minor Injury Guideline (“MIG”), an expense for a doctor’s appointment and a psychological assessment as listed in issues (i), (iii) and (iv) of the Case Conference Report and Order (“CCRO”) dated June 12, 2023 because he failed to attend an Insurer’s Examination (“IE”).
SUBSTANTIVE ISSUES
3The 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 a non-earner benefit of $185.00 per week from October 7, 2020 to September 8, 2022?
i. Is the applicant entitled to $70.00 for a doctor’s appointment, submitted on a claim form (OCF-6) dated November 6, 2020?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments in a treatment plan/OCF-18 (“plan”) dated January 14, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4On the preliminary issue, I find that the applicant is statute barred from proceeding to a hearing on issues i, iii and iv.
5I find that the applicant is not entitled to a non-earner benefit in the amount of $185.00 for the period from October 7, 2020 to September 8, 2022, and;
6Therefore, interest does not apply, nor an award.
PROCEDURAL ISSUES
7The applicant submitted an additional six pages of submissions regarding a special award above the 10-page limit set in the CCRO. The applicant did not request additional pages to make his submissions, therefore, I will not consider these additional submissions. I find the additional submissions proposed by the applicant is procedurally unfair to the respondent in limiting its submissions to the 10-page limit in accordance with the CCRO. Since both parties are obligated to adhere to the page limits set out in the CCRO, it is procedurally unfair to allow one party to unilaterally exceed the page limits.
8The respondent made no submissions regarding the additional submissions by the applicant. Since I have found that the applicant is not entitled to the disputed benefits, there is no prejudice to the applicant in not considering the additional submissions regarding a special award.
ANALYSIS
The applicant is statute barred from proceeding with issues i, iii, and iv due to s.44 non-attendance
9I find that the applicant is barred from proceeding to a hearing for MIG determination, doctor’s appointment expenses and the medical and rehabilitation treatment plan for a psychological assessment listed above as substantive issues i, iii and iv.
10The respondent submits that the applicant failed to attend a s.44 examination per s.55 of the Schedule, the applicant is statute barred from proceeding to a hearing on these issues.
11The applicant relies on s.44(9)(2)(i) of the Schedule which dictates that the insurer shall make reasonable efforts to schedule examinations for a day, time and location convenient for the insured person. The applicant submits that the respondent failed to make reasonable efforts to reschedule the assessment.
12However, the applicant has not advanced any submissions to show how s.44(9)(2)(i) was not followed.
13In this case, the applicant takes no issue with whether the notice provisions in s. 44 of the Schedule were complied with. The reason for the non-attendance was not provided by the applicant. The applicant submits that his representative requested that the IE be rescheduled in an e-mail correspondence dated July 5, 2023 to the respondent. The reason for the request to reschedule the IE was because the applicant’s representative had not discussed the IE with the applicant.
14he respondent submits that the applicant did not provide a reasonable explanation for his non-attendance at the IE. The respondent confirms that although the applicant’s representative did not confirm the applicant’s attendance at the scheduled IE on July 10, 2023, there was no explanation from the applicant providing a reason to reschedule the IE. The respondent further submits that ample notice was provided to the applicant and a communication error between the applicant and his representative does not trigger the insurer’s obligations to re-schedule the IE under s.44 of the Schedule. The respondent further argues that they sent a letter to the applicant dated July 12, 2023 requesting confirmation that the applicant will attend a rescheduled IE and the applicant never responded.
15I find that the respondent complied with the notice requirements in scheduling an IE under s.44 of the Schedule. There is no requirement for any input or consent from the applicant. The right to an IE is exclusively at the discretion of the respondent as long as; (a) the IE is reasonably necessary, (b) the requirements of the notice are in accordance with s.44 as discussed above, and (c) that the IE is in accordance with s.44 (9) to make reasonable efforts to schedule the examination for the day, time and location that is convenient for the applicant. I also find that the respondent made reasonable efforts to reschedule the IE by email correspondence dated July 12, 2023 and the applicant did not respond.
16The applicant did not take any issue with the type of IE psychiatric assessment requested by the respondent except for the timing of the assessment. The applicant further argues that the respondent refused to reschedule the IE after the applicant provided notice that he could not attend the IE on July 10, 2023. However, these submissions contradict the evidence provided by the applicant that the applicant’s representative had not discussed the IE with the applicant and the applicant never responded to the respondent’s offer to reschedule the IE on July 12, 2023. I find there was no prior notice by the applicant or reason provided to the respondent regarding why the applicant could not attend the IE.
17An applicant may not attend at a s.44 examination if they have a reasonable justification if the notice is improper or where it is not reasonably necessary. However, on these facts before me, I find that the applicant’s representative having not discussed the IE with the applicant does not meet the threshold of reasonability to justify non-attendance where there is a valid notice and the applicant did not respond to the respondent’s offer to reschedule the missed examination.
18I find that the respondent provided ample notice of the IE and the applicant did not provide a reason for his non-attendance. I also find that the respondent reached out to reschedule the IE and the applicant did not respond.
19The applicant submits that he should be allowed to pursue his claim for MIG and the disputed medical and rehabilitation benefits despite his failure to attend the IE because he will suffer prejudice. However, the respondent scheduled an IE to address the MIG and medical and rehabilitation benefits, which the applicant did not attend.
20The applicant submits that barring his ability to proceed with his claim is a disproportionate response in light of the applicant’s medical evidence. I disagree. While I have a discretion to allow the applicant to proceed to a hearing, that discretion should not be exercised where there is no reasonable excuse for the failure to attend an IE. Otherwise, the Legislature would not have barred insured persons who fail to comply with s. 44 of the Schedule from filing appeals with the Tribunal.
21The respondent submits that it is procedurally unfair for the application to proceed without the applicant having submitted to an IE. At its most basic, procedural fairness requires a party have an opportunity to be heard and that it be able to respond to the position taken against it. I find that to allow the applicant to proceed with his hearing on MIG and medical and rehabilitation benefits without having attended the scheduled IEs to address the issues would be procedurally unfair to the respondent.
22I find that the prejudice to the respondent outweighs any alleged undue hardship of the applicant to attend the IE with a psychiatrist to address MIG and medical and rehabilitation benefits.
23For the reasons above, as per s.55(1)(2) of the Schedule, I find that the applicant is statute barred from pursuing a claim for substantive issues I, iii and iv as he failed to attend a properly scheduled s.44 assessment.
The applicant is not entitled to a non-earner benefit (“NEB”)
24I find that the applicant has not established entitlement to an NEB as there is no evidence regarding his pre- and post-accident functional abilities to support this claim.
25Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
26Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
27The applicant submits that he did not return to his pre-accident personal care, housekeeping tasks and social activities as the basis for his substantive entitlement to NEBs. The applicant relies on his Disability Certificate (OCF-3) dated September 16, 2020 completed by Dr. Georgia Palantzas, chiropractor of Point Grey Physio which indicated that he was unable to carry on a normal life. The applicant further relies on his Activities of Normal Life (OCF-12) form dated November 3, 2020, in which he self-reports difficulties focusing and sleeping. The applicant submits that these difficulties have had an influence on his ability to study.
28However, the applicant indicates on his OCF-12 that he has partially returned to all his pre-accident activities. The applicant did not provide any details of his pre-accident activities or demonstrate how his participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to him, how he is prevented from engaging in the activities he normally engaged in pre-accident or evidence of the frequency and time commitments of his pre-accident activities. In the absence of this information, it is difficult to compare the applicant’s pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.
29The respondent argues that the applicant has not addressed the factors set out in Heath v. Economical Mutual Insurance, Company, 2009 ONCA 391, which include a comparison of the applicant’s activities and life circumstances before and after the accident.
30I agree with the respondent that the medical evidence does not establish a complete inability to carry on a normal life as a result of the accident. The respondent relied on the Application for Accident Benefits (OCF-1) dated September 9, 2020 completed by the applicant which indicates the applicant was a student at St. Clair College at the time of the accident. The respondent further relies on the St. Clair College records, which show that the applicant successfully returned to classes after the accident and he achieved higher grades than he did before the accident. The respondent argues that since the applicant indicates on his OCF-12 that he partially returned to all his pre-accident activities, he has not suffered a complete inability to carry on a normal life as a result of the accident.
31I find that the applicant has not established on a balance of probabilities that he is entitled to a NEB since he substantially returned to all of his pre-accident activities after the accident.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful in demonstrating his entitlement to a NEB and the other issues in dispute are barred, no benefits are owing and interest does not apply.
Award
30The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since the applicant is not entitled to the benefits in dispute, an award under s.10 of Reg. 664 is not warranted.
ORDER
31For the reasons set out above, I find that:
i. The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from October 7, 2020 to September 8, 2022;
ii. The applicant is barred from proceeding with claims for MIG, a doctor’s appointment expense (OCF-6) in the amount of $70.00; and the psychological assessment treatment plan in the amount of $2,200.00 pursuant to s.55 of the Schedule;
i. The applicant’s request for permission to proceed to a hearing on the substantive issues of MIG, a doctor’s appointment expense and a psychological assessment is denied;
ii. Interest is not payable and an award does not apply, and;
iii. The application is dismissed.
Released: December 20, 2024
Lisa Holland
Adjudicator