Ashton Armstrong v. TD Insurance Meloche Monnex, 2024 CanLII 4269

Citation: Armstrong, Mr. Peter Armstrong v. TD Insurance Meloche Monnex, 2024 ONLAT 21-010771/AABS

Licence Appeal Tribunal File Number: 21-010771/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:

Ashton Armstrong

A minor by her litigation guardian, Peter Armstrong

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Ben Irantalab, Counsel

For the Respondent:

Mr. Matthew Samuels, Counsel

HEARD:

By written submissions

OVERVIEW

1Ashton Armstrong, the applicant, was involved in an automobile accident on July 4, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The parties agree that the preliminary issue in dispute is as follows:

i. Is the applicant barred from a hearing on all of the substantive issues because the applicant failed to attend an insurer’s examination (IE)?

RESULT

3The applicant is barred from proceeding with this application for failing to attend an IE.

ANALYSIS

4The applicant is a minor who was two years old at the time of the accident. The applicant’s two siblings were also in the vehicle during the accident. The three of them are triplets.

5The respondent notified the applicant of two IEs on March 31, 2021. The first IE was scheduled on May 5, 2021 for a neurology assessment with Dr. Jeffrey Kobayashi. The second IE was scheduled on May 28, 2021 for a physiatry assessment with Dr. David Berbrayer. The respondent submits that these IEs are reasonably necessary to determine if the benefits sought in the disputed treatment plans are reasonable and necessary.

6Counsel for the applicant had previously advised the respondent on January 22, 2021 by way of a faxed letter that the applicant would not attend any in-person IEs because of her age and safety concerns related to Covid-19.

7The applicant now submits that she did not attend the IEs because the IE would have further deteriorated her already deteriorating mental and physical health and because the issues in dispute relate to modest medical rehabilitation treatment plans that could be adequately assessed by virtual assessments or a paper review during the Covid 19 pandemic. The applicant asks the Tribunal to exercise its discretion under s. 55 (2) of the Schedule to permit the application to proceed.

8The respondent submits that it gave proper notice of the IEs under s. 44(5) of the Schedule. It further submits that requests for examinations were timely, made in good faith and appropriate given its rights and obligations under the Schedule. According to the respondent, the applicant has not provided a reasonable basis for her refusal to attend the IEs.

9Section 44(5) of the Schedule requires the notice of an IE to contain the following four items:

i. Medical and other reasons for the examination;

ii. Whether attendance of the insured person is mandatory;

iii. The name of the person or persons conducting the examination, any regulated health profession to which they belong, titles and designations indicating their specialization, if any in their professions;

iv. 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.

10The respondent’s notice is found in Tab 25 of its brief. It complies with the requirements of s. 44(5). There is no dispute that the notice was served in a timely manner before the IEs. As such, I find that the applicant was provided proper notice for the two above noted IEs under s. 44 of the Schedule. I further note that there is no dispute that the applicant did not attend the two IEs in the notice.

11If an insured person fails to attend an IE for which there is compliant notice, the Tribunal may still exercise its discretionary authority to permit the insured person to apply to the Tribunal under section 280 of the Insurance Act for dispute resolution under s. 55 of the Schedule, which reads as follows:

55. (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:

56. 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.

57. 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.

58. 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.

12The applicant asks the Tribunal to exercise its discretionary authority in s. 55(2) of the Schedule because the IEs were not reasonably necessary. She provides two reasons for this. Firstly, attending the IEs would have caused the applicant further physical and psychological deterioration. The applicant also submits that the benefits in question are modest medical rehabilitation treatment plans that could be adequately assessed by virtual assessments or a paper review during the Covid 19 pandemic.

13The applicant attended an in-person examination with Dr. Erin Warriner, psychologist. In her report dated, August 26, 2019, Dr. Warriner opines that the applicant’s clinical presentation seems in line with mixed features of emerging generalized, social and separation anxiety disorders, but does not meet the full criteria for a diagnosis. Dr. Warriner further opines that the applicant is at risk of developing major depression.

14The applicant attended an in-person examination at Sick Kids Hospital. The clinical notes, dated November 1, 2021, of Dr. Adrian James, otolaryngologist, state that the perforations in the applicant’s ear canal are benign and may have been caused by the accident. The applicant’s mother indicated that she is interested in surgical exploration and repair.

15On February 2, 2022 the applicant was examined by Dr. Lara Propst, psychiatrist. In her undated report, she opines that the applicant struggles with self esteem and in 2021 had suicidal ideation. Dr. Propst further opines that the applicant’s symptoms are “best understood” as an adjustment disorder with depressed mood.

16The applicant points to evidence of psychological disorders. She does not cite medical evidence of ongoing physical deterioration. In any event, I agree that if the applicant’s parents have concerns in regard to an IE impacting the applicant’s psychological condition, then these concerns should be raised with the respondent to minimize any potential health impacts. However, this was not done. Instead, the applicant told the respondent, by way of the above noted letter dated January 22, 2021, that she will not attend any in-person IEs because of her age and safety concerns arising from the pandemic. In my view, this is inconsistent with her position for not attending the IEs as stated in her submissions for this hearing.

17I note that the applicant has attended medical examinations, including an assessment with Dr. Warriner that was completed for insurance purposes. She has not explained why she is agreeable to attending her own examinations but not the respondent’s examinations. This also undermines the applicant’s assertion that she fears her psychological condition will deteriorate if she attends an IE. For all these reasons, I find that the applicant has not established that she did not attend the IEs because of a concern that doing so would impact her psychological condition.

18The applicant did raise concerns to the respondent related to attending in-person IEs due to the pandemic and her age. We now live in a post-pandemic world where people can safely interact with each other. The applicant has not explained why she continues to have concerns about Covid-19. Moreover, she also did not explain how her age prevents her from attending an in-person IE. Consequently, I find that neither of these reasons adequately explain why the applicant has not attended the IEs.

19The applicant also argues that the treatment plans in dispute are modest plans that can be adequately assessed by virtual assessments or a paper review. The applicant has not provided a reasonable explanation for why she could not attend the in-person IEs. Consequently, the argument that a virtual IE or a paper review is sufficient to assess the treatment plans in dispute does not need to be considered.

20For all these reasons, I find that the applicant has not provided a sufficient basis for me to exercise the discretionary authority under s. 55(2) of the Schedule.

ORDER

21The applicant is barred from proceeding with this application pursuant to s. 55(1)2 of the Schedule.