Licence Appeal Tribunal File Number: 23-011879/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:
XiaoLin Wu
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Anil Hampole, Counsel
For the Respondent:
Deedra-Ann Lake, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1XiaoLin Wu (“the applicant”), was involved in an automobile accident on December 31, 2021 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 TD General Insurance Company (“the respondent”) 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:
i. Is the applicant is barred from proceeding with his claim for all of the accident benefits claimed in the application as he failed to submit to an insurer’s examination under section 44 of the Schedule?
RESULT
3The applicant is barred from proceeding with his application.
ANALYSIS
Parties’ Positions
4The respondent submits that the applicant failed to attend an insurer’s examination (IE) with a general practitioner to evaluate his physical injuries. The IE was rescheduled twice, and the applicant failed to attend all three. The respondent submits that it provided sufficient notice and reasons for the section 44 IEs, and that it required the examinations to determine the applicant’s entitlement to the benefits in dispute.
5Despite being given the opportunity, the applicant did not file any written submissions. By email on April 15, 2024, the applicant provided a copy of the treatment plan in dispute, as well as a copy of an email that had been sent to the respondent on January 26, 2024, requesting that the IE on February 1, 2024 be rescheduled.
The Law
6Section 44(1) 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. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE.
7The requirements for a Notice of Examination (“NOE”) are set out in section 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.
8Section 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 section 44, but the insured person has not complied.
9These provisions of the Schedule make it clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice.
The notice of examination complied with s. 44(5)
10The respondent must then prove that a Notice of Examination is compliant with section 44(5) of the Schedule in order to rely on it as a basis to seek a statutory bar under section 55. In seeking such a remedy, the respondent must ensure that it provides specific details of the applicant’s conditions, the benefit in dispute, and any section it relies upon. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). The reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.
11I find that the NOE dated September 22, 2023 was a valid notice. It provides medical reasons for the denial based on the prior IE reports, and notes that the applicant had received extensive physical treatment over 21 months with no change in the level of function. The IE was scheduled for November 9, 2023. The NOE letter was compliant and provided the necessary details of the assessor, the date, time, and location of the assessment.
12The applicant failed to attend, and the IE was rescheduled to December 14, 2023 (by letter dated November 16, 2023). It was also a compliant NOE. Following the second non-attendance, the IE was rescheduled a third time, for February 1, 2024. This NOE dated January 4, 2024 was also compliant with the Schedule.
13Having found that the notices were compliant, I must now consider whether the applicant had a reasonable explanation for his non-attendance.
The applicant does not have a reasonable explanation
14The applicant did not file any written submissions. The applicant has not met his onus to establish that there was a reasonable explanation for his non-attendance at the examination. I acknowledge the email from the applicant to the respondent on January 26, 2024 requesting that the IE on February 1, 2024 be rescheduled, however, there is no explanation why the applicant failed to attend the initial assessment on November 9, 2023 or the rescheduled assessment on December 14, 2023. In the absence of any written submissions, I find the applicant has not met his onus to establish a reasonable explanation for his non-attendance at the IE.
The applicant is barred from proceeding
15The respondent provided a valid notice that it required an examination under section 44. The applicant did not attend and has not provided a reasonable explanation for his non-attendance.
16Section 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 section 44, but the insured person has not complied.
17For the reasons above, I find that the applicant is precluded from applying to the Tribunal.
ORDER
18The applicant is barred from proceeding with his application to the Tribunal pursuant to section 55(1)2 of the Schedule.
Released: May 6, 2024
___________________________
Kate Grieves
Adjudicator