Licence Appeal Tribunal File Number: 21-008854/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:
Carlene Lea
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Haider Bahadur, Counsel
For the Respondent: Marcin Panasewicz, Counsel
HEARD: By written submissions
OVERVIEW
1Carlene Lea, the applicant, was involved in an automobile accident on August 18, 2017, 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, Aviva General Insurance and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing for the benefits set out below and interest under s. 55(1)(2) because the applicant failed to attend an insurer’s examination (“IE”)?
ISSUES
3The substantive issues 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 (MIG) limit?
ii. Is the applicant entitled to $2,761.89 for psychological services, proposed by Somayyeh Sabet Ghadam in a treatment plan/OCF-18 dated August 6, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is barred from proceeding with this application for failing to attend an IE.
ANALYSIS
5The applicant does not explain why she did not attend the insurer’s examination. Instead, she argues that the respondent did not comply with s. 38(8) of the Schedule because it denied the treatment plan for psychological services without providing medical reasons. Consequently, the notice for the IE is void ab initio as it was issued in respect of an improperly denied benefit.
6The respondent submits that the denial complies with s. 38(8) of the Schedule and that the notice for the IE meets the requirements of s. 44(5) of the Schedule. The respondent further submits that the applicant has not provided a reasonable explanation for not attending the IE, and therefore, is barred from proceeding with this application.
7Section 38(8) of the Schedule states:
Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
8The Schedule requires the respondent to provide medical reasons and all of the other reasons why it considers any services not to be reasonable and necessary.
9The respondent’s letter dated August 12, 2019 indicates that it received the OCF-18 on August 6, 2019. Under the heading of “medical reason” the letter states:
Upon review of the minor injury guideline and the treating practitioners medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.
10In my view, the lack of compelling evidence showing that the applicant’s impairment is outside the MIG constitutes a valid medical or other reason for denial which justifies arranging the IE to gather more information or a medical opinion.
11The applicant seems to argue that there is no evidence showing that the respondent considered the OCF-18 before arranging the IE. This position is inconsistent with the respondent’s letter of August 12, 2019 which states, “We’re unable to determine whether the recommendations on your OCF-18 are reasonable and necessary for the injuries you sustained and we’re not able to pay your benefits at this time.” The inference here is that the respondent did consider the OCF-18 and determined that an IE was required. For these reasons, I find that this correspondence complies with the requirement to provide medical reasons in 38(8) of the Schedule. I further find that the notice for the IE is not void ab initio as it complies with s. 38(8) of the Schedule.
12Section 44(5) of the Schedule requires the notice of an IE to contain the following four items:
Medical and other reasons for the examination;
Whether attendance of the insured person is mandatory;
The name of the person or persons conducting the examination, any regulated health profession to which they belong, titles and designation indicating their specialization, if any, in their professions;
If the insured person must attend, then the day, time and location of the examination and, if the examination requires more than one day, the same information for the subsequent days.
13I find the respondent’s correspondence, dated August 12, 2019, complies with the requirements of s. 44(5). As stated above, the respondent provided medical reasons for the IE. Additionally, the notice states that the applicant is required to attend the IE and provides the name of the person conducting the IE and that the person’s specialty is psychology. In the section related to cancellation fees, the assessor is noted as being a psychologist. The date, time, and location of the assessment is also provided. As such, the notice complies with all the elements of s. 44(5) of the Schedule. Further, there is no dispute that the notice was served in a timely manner before the IEs. For these reasons, I find that the applicant was provided proper notice for the two IEs under s. 44(5) of the Schedule.
14The Tribunal has discretionary authority to permit an insured person to apply to the Tribunal despite failing to comply with the requirement to attend an IE. Section 55 of the Schedule reads as follows:
(1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:
The insured person has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by this Regulation.
The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.
The issue in dispute relates to the insurer’s denial of liability to pay an amount under an invoice on the grounds that,
i. the insurer requested information from a provider under subsection 46.2 (1), and
ii. the insurer is unable, acting reasonably, to determine its liability for the amount payable under the invoice because the provider has not complied with the request in whole or in part. O. Reg. 44/16, s. 6.
(2) The Licence Appeal Tribunal may permit an insured person to apply despite paragraph 2 or 3 of subsection (1). O. Reg. 44/16, s. 6. (emphasis added)
(3) The Licence Appeal Tribunal may impose terms and conditions on a permission granted under subsection (2). O. Reg. 44/16, s. 6.
15The applicant makes no submissions in regard to s. 55(2) of the Schedule.
16The applicant provided no reasons for not attending the IE. The entirety of her submissions on the preliminary issue relate to the validity of the notice for the IE. Having considered the circumstances of this case, I find there is an insufficient basis to permit the applicant to apply under 55(2) of the Schedule.
17I find that the applicant is barred from proceeding with this application for the issues in dispute pursuant to s. 55(1)2 of the Schedule due to her failure to attend a section 44 IE.
ORDER
18The applicant is barred from proceeding with this application pursuant to s. 55(1)2 of the Schedule.
Released: April 30, 2024
__________________________
Harry Adamidis
Adjudicator