Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-000883/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:
Nicole Delellis
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Nicole Delellis, Applicant
Christopher Collins, Counsel
For the Respondent:
TD Insurance Meloche Monnex
Connor Duprey, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Nicole Delellis, the applicant, was involved in an automobile accident on October 30, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied the treatment in dispute on the basis that the applicant did not attend s.44 insurer’s examinations (“IEs”) and that the treatment plan is not reasonable and necessary. The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
3The preliminary issue is whether the applicant is barred under s.55 of the Schedule from proceeding to a hearing for optometry services because she failed to attend an IE.
ISSUES
4The issues in dispute are:
i. Is the applicant entitled to $2,756.25 for optometry services, proposed by Maciej Suwala in a treatment plan/OCF-18 (“plan”) dated August 27, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant is barred from proceeding with her claim for optometry services as she failed to attend an IE without any reasonable excuse.
6The application is dismissed.
PROCEDURAL ISSUES
7After the case conference, the respondent brought a motion for dismissal of the application. In order dated August 31, 2023, Adjudicator Griffith allowed the addition of a preliminary issue to the hearing to determine whether the applicant is precluded from proceeding with her application because she failed to attend s.44 insurer’s examinations (“IEs”) without reasonable explanation. Adjudicator Griffiths found no prejudice to either party by adding the preliminary issue.
8The applicant submits that the respondent did not raise the preliminary issue at the case conference and has raised the issue for the first time at the hearing. However, the respondent brought a motion in which the preliminary issue was added to the hearing. The applicant has made no submissions in support of her alleged prejudice by adding the preliminary issue. I find that the applicant has failed to establish any prejudice resulting from the addition of the preliminary issue.
PRELIMINARY ISSUE
9The preliminary issue to be decided is whether the applicant is barred under s.55 of the Schedule from proceeding to a hearing for optometry services because she failed to attend an IE. I find that the applicant is barred for the following reasons.
ANALYSIS
Is the application barred because the applicant did not attend s.44 IEs?
10Section 55 of the Schedule bars the applicant from applying to the Tribunal if the respondent provided her with notice in accordance with s. 44 that it required an IE under s. 44, but the applicant did not comply with that section. The onus is on the insured person to provide a reasonable explanation for non-attendance at an IE. Under s. 44 of the Schedule, the applicant is required to attend an IE if the following conditions are met:
a. IEs are to be conducted not more often than is reasonably necessary;
b. IEs are to be conducted by regulated health professionals or people who have expertise in optometry;
c. IEs are to be scheduled for a day, time, and place convenient to the applicant;
d. The respondent is required to provide notice of the IE to the applicant five or more business days before the IE; and
e. The IE notice is required to provide the applicant with the applicant with the medical and any other reasons for the IE, whether she was required to attend and, if so, the day, time and location of the IE and the name of the IE assessors, their regulated health profession, and their titles and designations indicating their specialization, if any.
11In this case, the applicant takes no issue with whether the notice provisions in s. 44 of the Schedule were complied with. The reason for the non-attendance was due to the location. The applicant resides in London and attending an IE in Toronto or Brampton was not convenient. The applicant relies on s.44(9)2(i) of the Schedule, which provides that an insurer shall make reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person. The respondent advised the applicant that there are no neuro-ophthalmology or optometry assessors in the London area. The applicant further argues it is unreasonable to require her to travel a distance of 2 hours each way to an assessment.
12The respondent proposed two different types of experts for the assessment, but neither were available in the London area. A neuro-optometry assessment could not be done virtually to accommodate the applicant. The respondent advised the applicant that there are few specialists available to conduct this type of assessment and Brampton is the closest location. The respondent submits it made reasonable efforts to locate an optometry assessor in London with two vendors and both confirmed that Brampton is the only option.
13I find that the respondent made reasonable efforts to locate an assessor at a convenient location. The convenience of the location is based on reasonableness not perfection. In scheduling an IE under s.44, there is no requirement for any input or consent from the applicant. The right to an IE is exclusively at the discretion of the respondent as long as; (a) the IE is reasonably necessary, (b) the requirements of the notice are in accordance with s.44 as discussed above, and (c) that the IE is in accordance with s.44 (9) to make reasonable efforts to schedule the examination for the day, time and location that is convenient for the applicant.
14The applicant further argues that a neuro-ophthalmologist is not qualified to assess whether optometry treatments are reasonable and necessary. Whether a neuro-ophthalmologist is qualified to assess the OCF-18 for vision therapy, is secondary to the applicant failing to attend an IE. The qualifications of the IE assessor and opinions in the assessment report can be subsequently argued. However, in order to dispute the validity of an IE assessor’s opinion, the applicant would need to first attend the assessment and obtain the assessment report before making that determination.
15The respondent approved further optometry services despite the applicant’s failure to attend the IE on June 25, 2020 by neuro-ophthalmologist, Dr. Paul Ranalli, in Toronto. Again, the applicant refused to attend a subsequent IE on November 4, 2021 with optometrist, Dr. B. Patel in Brampton regarding further optometry treatments. The applicant submits that she would suffer undue hardship by attending an IE in Brampton, despite the respondent providing transportation. There are no facts in support of her allegations of undue hardship. The respondent submits that optometry services are not payable for any period before the applicant attends an IE assessment as the applicant has no reasonable excuse for her failure to attend. The respondent submits they are prejudiced by the applicant’s refusal to attend the IE’s and their inability to obtain an independent medical opinion.
The respondent’s request for an optometry IE was reasonably necessary
16The applicant did not take any issue with the type of IE optometry assessment requested by the respondent except for the location of the assessment. The applicant submits that it is inconvenient for her to travel to Brampton to attend an assessment, despite the respondent providing ample notice and transportation.
17The respondent submits that they have provided funding for optometry treatments for over three years without obtaining an IE. The applicant has not made any arguments concerning the number of IEs requested by the respondent.
The hearing on the optometry services treatment plan will not proceed
18The applicant asks that I exercise my discretion under s.55(2) of the Schedule. She submits that she should be allowed to pursue her claim for optometry services despite her failure to attend the IEs because she will suffer prejudice.
19The applicant submits that barring her ability to proceed with her claim is a disproportionate response in light of the applicant’s medical evidence. I disagree. While I have a discretion to allow the applicant to proceed to a hearing, that discretion should not be exercised where there is no reasonable excuse for the failure to attend IEs. Otherwise, the Legislature would not have barred insured persons who fail to comply with s. 44 of the Schedule from filing appeals with the Tribunal.
20The respondent submits that it is procedurally unfair for the application to proceed without the applicant having submitted to an IE. At its most basic, procedural fairness requires a party have an opportunity to be heard and that it be able to respond to the position taken against it. I find that to allow the applicant to proceed with her hearing on optometry services without having attended the scheduled IEs to address the issue would be procedurally unfair to the respondent.
21I find that the prejudice to the respondent outweighs any alleged undue hardship of the applicant to attend an IE in Brampton. Accordingly, I decline to exercise my discretion under s. 55(2) of the Schedule.
ORDER
22Given that the applicant failed to attend IEs scheduled to assess her entitlement to optometry services without a reasonable excuse, I find she is barred from proceeding with her claim for these benefits at the Tribunal pursuant to s.55(1)2 of the Schedule.
23The applicant’s request for permission to proceed to a hearing on the substantive issue of optometry services is dismissed.
Released: June 26, 2024
Lisa Holland
Adjudicator