Citation: Ramdani v. Intact Insurance Company, 2024 ONLAT 23-006297/AABS - PI

Licence Appeal Tribunal File Number: 23-006297/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:

Babareen Ramdani

Applicant

and

Intact Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: No submissions were filed

For the Respondent: Aneal Seegobin, Counsel

HEARD: By way of written submissions

OVERVIEW

1Babareen Ramdani, the applicant, was involved in an automobile accident on June 10, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for all of the benefits claimed in her application because the applicant failed to attend insurer’s examinations under s. 44 of the Schedule.

result

3The applicant is statute-barred from proceeding with her application.

analysis

Background and parties’ positions

4The applicant was involved in an accident on June 10, 2018 and submitted two treatment plans (“OCF-18s”) to the respondent. An OCF-18 submitted August 26, 2019 proposed $3,054.73 in chiropractic services, and an OCF-18 submitted November 13, 2019 proposed a psychological assessment in the amount of $2,200.00.

5The respondent initially replied to both OCF-18s with separate s. 33 requests for medical records, including clinical notes and records (“CNRs”) from the applicant’s family physician and hospital records. The respondent subsequently sent correspondence dated January 24, 2020, requesting the applicant’s attendance at s. 44 insurer’s examinations (“IEs”) to assess whether the applicant remains in the Minor Injury Guideline (“MIG”) and whether the proposed treatment plans were reasonable and necessary.

6The respondent submits that the applicant failed to attend both properly scheduled IEs as well as a number of re-scheduled IEs. By way of letter dated April 12, 2022, the respondent maintained the denials and indicated that it was prepared to reschedule the IEs, if the applicant provided written confirmation that she would attend, and a reasonable explanation for non-attendance. The respondent submits that to date, the applicant has not provided any explanation for the non-attendance. It argues that it has been severely prejudiced by the non-attendance as it has been deprived of the opportunity of assessing the applicant in a timely manner. The respondent further argues that all of the IEs were reasonably necessary and properly scheduled.

7The applicant did not file submissions or evidence for the preliminary issue hearing. Nor did the applicant attend the case conference conducted on January 23, 2024, although the applicant’s counsel was in attendance. The applicant did not request an extension of time to file her submissions.

Law

8Section 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.

9Section 55(1)2 of the Schedule provides that an insured shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44 but the insured person has not complied with their attendance. A notice under s. 44(5) must state the medical reason for the examination, whether the insured’s attendance is required, the name, title and designation of the person conducting the IE and the date, time and location of same.

Section 55(1)2 and the applicant’s failure to attend scheduled IEs

10I find that the applicant has failed to attend properly scheduled IEs without reasonable explanation. As such, she is statute-barred from proceeding with her application pursuant to s. 55(1)2. The evidence submitted by the respondent establishes that it properly scheduled IEs reasonably necessary to assess the applicant’s entitlement to the treatment plans in dispute and whether her accident-related impairments warranted removal from the MIG.

11I find that the respondent’s correspondence and notices of examination dated January 24, 2020 requesting the applicant’s attendance at the IEs, comply with the requirements of s. 44(5). These notices followed the respondent’s s. 33 requests dated September 4, 2019 and November 26, 2019, requesting her family doctor’s CNRs and hospital records. The January 24, 2020 correspondence then specifically referenced the treatment plans in dispute and stated that after reviewing the medical documentation it had received, there was insufficient evidence of the listed injuries. I find that the correspondence and notices were clear and sufficient enough to allow an unsophisticated person to make an informed decision on whether to attend the IEs. The correspondence and applicable notices further identified the names of the persons conducting the IEs, together with their professional designations, and the dates, times and locations of the IEs.

12I further find that the scheduled IEs were reasonably necessary to assist the respondent to assess the applicant’s entitlement to the benefits claimed. A psychological IE would help the respondent determine whether the psychological assessment was warranted. Further, the General Practitioner IE would be relevant to an assessment of impairments warranting chiropractic treatment. Both IEs would be reasonably necessary to determine the applicability of the MIG.

13The applicant is required to attend all reasonably necessary IE examinations. By not attending the scheduled assessments, the applicant has precluded the respondent from adjusting his file and helping it make the determination of whether the treatment plans are reasonable and necessary. As previously noted, the applicant has failed to file submissions or evidence for this hearing explaining why she failed to attend the scheduled IEs. The onus rests with the applicant to provide a reasonable explanation for her non-attendance. Based on the record before me, I find that the respondent has established the applicant’s non-attendance at reasonably necessary IEs, without reasonable explanation.

14For the reasons cited above, I find that the applicant is statute-barred from proceeding with her application pursuant to section 55(1)2 of the Schedule.

ORDER

15The applicant is barred from proceeding with her application pursuant to s. 55(1)2 of the Schedule.

16The application is dismissed and the substantive hearing is vacated.