Licence Appeal Tribunal File Number: 23-003733/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:
Wesley Curameng
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
Joy Kohli, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Wesley Curameng, the applicant, was involved in an automobile accident on February 19, 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 the respondent, Intact Insurance Company, 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 whether the applicant is precluded by section 55(1)2 of the Schedule from proceeding with his application for failing to attend insurer’s examinations scheduled under section 44 of the Schedule.
result
3The applicant is not barred from proceeding with his application.
analysis
Respondent’s request to strike paragraphs 23 to 51 of applicant’s submissions
4The respondent argues that the applicant has improperly addressed the substantive issues in dispute, in his submissions for this preliminary issue hearing. It argues that the Case Conference Report and Order (“CCRO”) dated November 20, 2023, specified that the preliminary issue was to be heard prior to the substantive issues in dispute and that a separate hearing for the substantive issues was scheduled for July 12, 2024.
5I agree with the respondent that paragraphs 23 to 51 of the applicant’s submissions address the substantive issues in dispute. The CCRO clearly stated that the preliminary issue in dispute was to be addressed at this preliminary issue hearing prior to the hearing on the substantive issues in dispute. By way of Notice of Written Hearing, a separate hearing was scheduled to consider the substantive issues. I find that paragraphs 23 to 51 of the applicant’s submissions are in contravention of the CCRO and prematurely address the substantive issues in dispute. As such, paragraphs 23 to 51 of the applicant’s submissions will be struck from the evidentiary record for this preliminary issue hearing.
Parties’ positions and the law
6The respondent submits that the applicant has failed to attend insurer’s examinations (“IEs”), which had been properly scheduled to determine his entitlement to non-earner benefits (“NEBs”) and the treatment plans in dispute. The respondent argues that the applicant has not attended a single IE to date, and that it has been severely prejudiced by his non-attendance as it has been deprived of the opportunity of assessing the applicant in a timely manner. It further argues that all of the scheduled IEs were reasonably necessary and that the applicant has failed to provide a reasonable explanation for his non-attendance. Finally, the respondent submits that it provided proper Notices of Examination (“NOEs”), along with sufficient medical reasons and explanations for the requested IEs.
7The applicant does not dispute that he failed to attend the IEs. However, he submits that the respondent’s correspondence and NOEs were deficient pursuant to s. 44(5) of the Schedule. The applicant argues that the respondent cannot rely on its deficient notices and that as such, he should not be barred from proceeding to the hearing pursuant to s. 55(1)2 of the Schedule.
8Section 44 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 evoke its rights to an IE.
9The requirements for a Notice of Examination 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.
10Pursuant to s. 55(1)2 of the Schedule, an applicant shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. Pursuant to s. 55(2), the Tribunal has discretion to permit the application to proceed despite non-compliance and may impose terms of that permission, pursuant to s. 55(3).
Are the IE notices in compliance with s. 44(5)?
11I find that the respondent’s notices did not comply with s. 44(5) of the Schedule. By way letters dated April 21, 2021, April 13, 2021 and May 31, 2021 the respondent requested the applicant’s attendance at IEs to address entitlement to NEBs and the treatment plans for physiotherapy services and a psychological assessment. All of the notices used similar language, namely that “there is no medical documentation or diagnosis on file that would support the claimant’s” entitlement to the referenced benefit, or removal from the Minor Injury Guideline.
12I find that these notices are insufficient, as they fail to provide any specific details about the applicant’s medical condition forming the basis of the respondent’s decision. From the notices, it is unclear what the applicant’s medical conditions or impairments are. Further, the respondent did not specify, in the alternative, what information about the applicant’s condition that it did not have, but required. Nor are these reasons clear and sufficient enough to allow an unsophisticated person to make an informed decision on whether to attend the IE. The respondent did not cure these notices in any subsequent notice.
13In order for an insurer to invoke its s. 44 right to an IE, it must first provide a legally sufficient notice pursuant to s. 44(5). If the respondent’s notice does not comply with section 44(5), an insurer cannot rely on the remedy available in section 55 of the Schedule to bar an insured’s application from proceeding before the Tribunal.
14Given that I have found that the notices were deficient, it is not necessary for me to embark on an analysis as to whether the IEs were reasonably necessary and whether the applicant had a reasonable explanation for his non-attendance.
15For the reasons cited above, I find that the applicant is not barred from proceeding with his application pursuant to section 55(1)2 of the Schedule.
ORDER
16The applicant may proceed with his application before the Tribunal.
Released: January 11, 2024
Ulana Pahuta
Adjudicator