Licence Appeal Tribunal File Number: 23-006819/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:
Juliet Canete
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Adam B. Kuciej, Counsel
For the Respondent:
David Koots, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Juliet Canete, the applicant, was involved in an automobile accident on April 9, 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 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 she 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 April 9, 2022 and submitted nine treatment plans (“OCF-18s”) to the respondent. By way of various correspondences and Notices of Examination (“NOE’s”), the respondent requested the applicant’s attendance at a General Practitioner insurer’s examination (“IE”), Neurological IE and Psychological IE. The respondent submits that the applicant failed to attend all of the scheduled and rescheduled IEs to assess whether the applicant remains in the Minor Injury Guideline (“MIG”) and whether the proposed treatment plans were reasonable and necessary. It further argues that the applicant failed to provide requested medical records from her pre-accident family physician.
5Given the applicant’s failure to attend at all of the properly scheduled s. 44 assessments, the respondent submits that the applicant is statute-barred from proceeding with her application pursuant to s. 55(1)2 of the Schedule.
6The applicant does not dispute that she failed to attend the ten scheduled and rescheduled IEs. However, she submits that the respondent cannot rely on s. 55(1)2 to bar her application, as all of its NOEs were deficient in that they did not provide sufficient “medical and other reasons” for the examination. The applicant submits that the respondent has an obligation to review her medical file in good faith, and cites M.B. v. Aviva 2019 CanLII 101465, Peel Mutual Insurance Company, 2018 CanLII 39373 and Hedley v. Aviva, 2019 ONSC 5318 to argue that a respondent must provide a “principled rationale based fairly on an insured’s file” in order to meet its obligations pursuant to s. 44(5) of the Schedule.
7The applicant argues that the respondent has long had in its possession medical records clearly indicating that she suffered from non-minor injuries, including a concussion, radiculopathy, psychological impairments and chronic pain. However in its NOEs it failed to provide medical reasons for the examinations, and inaccurately stated that there was “no evidence” supporting a non-minor injury. The applicant further argues that she has repeatedly requested that the psychological IE be rescheduled. Finally, the applicant submits that even if the Tribunal finds that the NOEs were compliant, the application should not be barred from proceeding, but rather, stayed pending her attendance at the IEs.
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