Licence Appeal Tribunal File Number: 21-010847/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:
[J.P.A] (A minor by his litigation guardian, Peter Armstrong)
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Ben Irantalab, Counsel
For the Respondent:
Matthew Samuels, Counsel
HEARD:
By written submissions
OVERVIEW
1[J.P.A], 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, Security National, 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)?
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to a medical benefit in the amount of $1,242.16 for physiotherapy services, proposed by [C.M] in a treatment plan/OCF-18 (“plan”) submitted October 21, 2019 and denied on November 4, 2019?
ii. Is the applicant entitled to a medical benefit in the amount of $895.00 for optometrist services, proposed by [A.P] in a plan submitted January 30, 2020 and denied on April 13, 2020?
iii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is barred from proceeding with this application pursuant for failing to attend an IE.
ANALYSIS
5The applicant is a minor who was two years old at the time of the accident. He was notified of two IE’s on January 2, 2020. Both IE’s were to assess the need for attendant care. The first IE was to be conducted by an occupational therapist on January 28, 2020. The second IE was scheduled for April 2, 2020 with a psychologist. Counsel for the applicant advised the respondent on January 10, 2020 by way of a faxed letter that the applicant would not attend these IEs.
6The applicant submits that he did not attend the IEs because doing so would deteriorate his 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 dismiss the preliminary issue.
7The respondent submits that it gave proper notice of the IEs under s. 44(5) of the Schedule. It further submits that requests for examinations have been 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 his refusal to attend the IEs.
8Section 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 designations 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.
9The respondent’s notice is found in Tab 13 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. Consequently, I find that the applicant was provided proper notice for the two IEs under s. 44 of the Schedule.
10There is no dispute that the applicant did not comply with this notice.
11The Tribunal’s discretionary authority to permit an insured person to apply to the Tribunal under 280 of the Insurance Act, despite failing to comply with the requirement to attend an IE, under s. 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.
12The applicant is asking the Tribunal to exercise the discretionary authority in s. 55(2) of the Schedule because the IEs were not necessary and reasonable. He provides two reasons for this. Firstly, attending the IE’s would have caused 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 references two assessments which caused him to experience pain and psychological deterioration. The first assessment was an IE that took place on December 10, 2019, when the applicant was six years old. After the IE, counsel for the applicant wrote a letter to the respondent, dated February 11, 2020, to advise them that the testing had a negative impact on the applicant. Apparently, the assessor asked the applicant to do things that hurt, like overhead throws with a ball. The applicant’s mother felt that the applicant was pushed beyond his limits and reports that the testing caused the applicant to experience pain. The applicant could not lay down without difficulty. Pain symptoms also caused the applicant to have sleep issues.
14The second examination was a neuropsychological assessment by Dr. [E.W], psychologist, that took place on November 20, 2022. Dr.[W] notes that the applicant’s mother reported that the applicant found previous IE’s overwhelming and exacerbated his anxiety, nightmares, and headaches. Dr.[W] further notes that the applicant’s mother reported that the applicant was “wired” and fidgety after the November 20, 2022 assessment. The applicant became scared in the hotel and was hearing noises, had difficulty sleeping and frequently awoke because of nightmares.
15The applicant’s mother has concerns regarding the effects of IE’s on the applicant’s mental health and physical well-being. Expressing these concerns, as was done in the applicant’s letter dated February 11, 2020, and asking the respondent to take steps to ensure the health and safety of the applicant is entirely appropriate.
16The applicant also submits that he is willing to attend a virtual assessment, but this request was denied by the respondent. The applicant points to his letter dated February 17, 2021 where he offers to attend a remote assessment for an optometry IE.
17The preliminary issue raised in this proceeding involves failure to attend two IE’s for attendant care. The respondent’s letter dated January 20, 2020 advises that it will reschedule the IE if the applicant decides to attend. This opened the door for the applicant to raise the health concerns and ask for accommodations to be made for the attendant care IEs. The applicant has not pointed to any evidence that he attempted to work with the respondent to attend these particular IE’s.
18In the applicant’s letter dated January 10, 2020 to the respondent, the applicant advised that the multi-disciplinary assessments for attendant care are “unreasonable and excessive.” He does not mention the possibility of his health being impacted by the IE. Moreover, he states that he will not consider attending the requested assessments until the respondent amends its refusal to fund attendant care.
19I agree that the respondent must be sensitive to the applicant’s health condition and design the IE’s in a way that minimizes potential health impacts. However, there is no evidence before me that applicant did not attend these particular IE’s because the respondent failed to provide health accommodations. Instead, the evidence shows that he did not attend these IE’s for attendant care because he perceived it as excessive and because his attendant care benefit had been cancelled.
20The applicant also argues that the treatment plans in dispute are modest plans that can be adequately assessed by virtual assessments or a paper review. This submission do not address the preliminary issue of failing to attend two IEs for attendant care.
21The applicant did not attend the IE’s because he felt they were excessive and because his attendant care benefits were denied. In my view, these reasons do not reasonably explain his decision to not attend the IEs. As well, the applicant has not shown that the respondent refused to accommodate his health concerns regarding his attendance at the two attendant care IEs.
22Consequently, I find that the applicant has not provided a sufficient basis for me to exercise the discretionary authority under 55(2) of the Schedule.
23I further find that the applicant is barred from proceeding with this application pursuant to s. 55(1)2 of the Schedule.
ORDER
24The applicant is barred from proceeding with this application pursuant to s. 55(1)2 of the Schedule.
Released: January 24, 2024
Harry Adamidis
Adjudicator