Licence Appeal Tribunal File Number: 22-006157/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:
Tamou Naji
Applicant
and
Unifund Assurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Michael R. Switzer, Counsel
For the Respondent:
Katherine E. Kolnhofer, Counsel
Damien Van Vroenhoven, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Tamou Naji (“the applicant”), was not involved in an automobile accident, but claims psychological impairment as a result of the injuries her daughter sustained in an accident on June 19, 2017, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Unifund Assurance 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 her claim for all of the accident benefits claimed in the application as she failed to submit to an insurer’s examination under section 44 of the Schedule?
RESULT
3The applicant is barred from proceeding with her application.
ANALYSIS
Background
4The applicant was not in the accident herself but claims psychological impairment as a result of her daughter’s injuries resulting from an accident on June 19, 2017. After her daughter’s accident the applicant moved to Morocco to live with her son.
5The applicant is disputing entitlement to non-earner benefits, the applicability of the Minor Injury Guideline, and two treatment plans. The initial application for benefits (OCF-1) and disability certificate (OCF-3) were submitted to the respondent nearly three years after the accident, on June 2, 2020.
6An explanation of benefits dated October 14, 2020, addressed the applicant’s initial entitlement to accident benefits. The respondent advised that insurer’s examinations (IEs) were required to address her initial entitlement to accident benefits, specifically what, if any, psychological impairments she suffered as a result of her daughter’s accident.
7The first IEs (psychological and occupational therapy) were scheduled for November 2020 by way of a notice of examination (NOE) dated October 16, 2020.
8The applicant advised (through her counsel) that she had moved to Morocco to be taken care of by family. She acknowledged that she would need to attend the assessments, but proposed:
i. That she attend any assessments by videoconference; or
ii. That she attend any assessments in person in Morocco; or
iii. That she attend any assessment in Ontario provided that the respondent:
a) Fund the applicant’s travel to and from Morocco;
b) Fund the cost of an attendant to fly with the applicant (both in business class);
c) Fund attendant care to be provided to the applicant during her stay in Ontario.
9The respondent advised that it did not agree to the applicant’s proposal and that she was expected to make herself available for the assessments. The respondent inquired as to when she left the country, who accompanied her, and when she was expected to return to Ontario. The respondent inquired as to why she could only travel in business class with an attendant.
10The applicant agreed to travel to Canada, arranged by her family, to attend the assessments in January 2021. Accordingly, by NOE dated November 3, 2020, the respondent advised that the assessments were rescheduled to take place on January 21, 2021 and February 5, 2021.
11On December 22, 2020 the applicant advised that the travel agent could not find flights from Morocco in light of the COVID-19 pandemic. The IEs were rescheduled again to take place on February 26, 2021 and March 2, 2021.
12On February 19, 2021 the applicant advised that she was still in Morocco and unable to travel. No reason was provided. The respondent advised that no assessments would be rescheduled until her flights to Canada were confirmed. There have been no further attempts to reschedule the IEs.
13The respondent points out that the applicant has likely returned to Canada on at least three occasions since October 2020 without making herself available for IEs. According to prescription summaries, she filled prescriptions in July 2021, March 2022, and March 2023. An OHIP summary covering the period from March 2020 to March 2022 indicates that she accessed medical care in Ontario in July 2021 and March 2022. In order to access OHIP she must have been physically present in Ontario for 153 days in any 12-month period, pursuant to Regulation 552 of the Health Insurance Act.
The law
14Section 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.
15Section 44(9)2i requires the insurer to make reasonable efforts to schedule the examination for a day, time, and location that are convenient for the insured person. In turn, pursuant to section 44(9)2iii the insured person shall attend and submit to all reasonable physical, psychological, mental and functional examinations requested by the person(s) conducting the examination.
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.
The applicant is non-compliant with section 44
17The applicant agrees that she is obligated to attend IEs but suggests it would be reasonable for the assessment to take place either: (a) by videoconference, (b) in person in Morocco, or (c) in Canada if the insurer pays for the cost of travel. The applicant requests an order that the insurer must accommodate her by either arranging for assessments to occur by videoconference where possible; to arrange for assessments to occur at a location that is reasonably convenient to her; or pay the reasonable and necessary travel and accommodation expenses for her to travel to the assessment. The applicant did not direct me to any law or jurisprudence as to whether I have authority to make such an order, and I find that I do not.
18The respondent submits that it has a right to conduct an in-person assessment to fairly assess the applicant’s claim for benefits, to provide it with an opportunity to make a full response, so long as the IEs are not conducted more often than are reasonably necessary. I agree.
19I also agree that the applicant’s offer to attend an examination in Morocco is not a solution because it is not permitted by the Schedule. Section 44(1) requires that assessor’s chosen by the insurer to conduct the assessment must be a “regulated health professional”, which is defined in section 3, as a “profession governed by a College as defined in the Regulated Health Professions Act, 1991”, which is Ontario legislation that governs the colleges of regulated health professionals in the province. The Schedule clearly requires that section 44 assessments be performed by health professionals regulated by professional colleges in Ontario. Neither party made submissions as to whether a health professional regulated by an Ontario college could travel to Morocco to conduct the assessment.
20Both parties have reciprocal obligations in the IE process. The respondent has a duty to make reasonable efforts to schedule the examination for a day, time, and location that are convenient for the insured. The respondent did so, twice, based on the availability provided by the applicant. The applicant also has a duty to make herself reasonably available for the assessments. No explanation was provided for her failure to attend the rescheduled assessments in February and March 2021. While I understand that she experienced challenges returning to Canada due to the pandemic, the applicant has not made herself available for insurer examinations since that time. The evidence suggests that she has in fact returned to Canada at least three times since March 2021 but made no attempt to make herself available for IEs. The applicant submits that she cannot travel without an attendant and possibly with the use of an air ambulance, due to medical conditions. She alleges that she has a history of falls and requires assistance with transportation and requires supervision for safety. However, the applicant provided very little evidence in support of those submissions. Therefore, I give them little weight.
21The applicant is non-compliant with her obligation to attend insurer’s examinations pursuant to section 44. Accordingly, I find that she is barred from proceeding with her claim pursuant to section 55 of the Schedule.
ORDER
22The applicant is barred from proceeding with her application pursuant to section 55 of the Schedule.
Released: June 18, 2024
Kate Grieves
Adjudicator