Licence Appeal Tribunal File Number: 23-015587/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:
Parminder Singh Gill
Applicant
and
Pembridge Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
Vice-Chair:
Tyler Moore
APPEARANCES:
For the Applicant:
Yeganeh Pejman, Counsel
For the Respondent:
Jessica N. Telfer, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Parminder Singh Gill (“the applicant”), was involved in an automobile accident on December 3, 2020 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 Pembridge Insurance 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 barred from proceeding with his claim for all of the accident benefits claimed in the application as he failed to submit to an insurer’s examination under section 44 of the Schedule?
RESULT
3The applicant is barred from proceeding to a substantive issues hearing for all accident benefits claimed in the application. The applicant’s request for costs is denied.
ANALYSIS
Parties’ Positions
4I have reviewed the submissions of the parties in their entirety. the respondent submits that the applicant failed to attend all nine insurer’s examinations (IEs) to assess his entitlement to non-earner benefits (“NEBs”), attendant care benefits (“ACBs”), chiropractic/physiotherapy services, psychological and neurocognitive assessments, and occupational therapy services. Several IEs were re-scheduled multiple times, and the applicant has not attended any to date. The respondent submits that it provided sufficient notice and reasons for the section 44 IEs, and that it requires the examinations to determine the applicant’s entitlement to the benefits in dispute.
5The applicant submits that the notices were deficient and did not provide sufficient medical or other reasons.
The Law
6Section 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. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE.
7The requirements for a Notice of Examination (“NOE”) 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.
8Section 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.
9These provisions of the Schedule make it clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice.
NEBs
10I find that the respondent’s NOEs comply with section 44(5) of the Schedule.
11The respondent must prove that a notice of examination complies with section 44(5) of the Schedule to seek a statutory bar under section 55. In seeking such a remedy, the respondent must ensure that its NOEs provide specific details of the applicant’s conditions, the benefit in dispute, and any section of the Schedule it relies upon in requesting the IE. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). The reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.
12The respondent submits that IEs were scheduled after the applicant failed to provide information that it requested pursuant to section 33(1) of the Schedule on April 9 and May 11, 2021. In each correspondence, the respondent set out that the documents were being requested to assess entitlement to NEBs. In a NOE dated August 20, 2021 the respondent set out that IEs were being scheduled to assess the applicant’s entitlement to NEBs, ACBs, and medical benefits, after the applicant failed to provide all of the requested documents. Medical reasons were provided, including that there was conflicting evidence and a lack of updated medical evidence. The NOE included information that a physiatry assessment was scheduled for September 10, 2021, a neurology assessment for September 23, 2021, a psychology assessment for September 27, 2021, and an in-home occupational therapy assessment for October 19, 2021.
13The applicant provided a response to the NOE on August 25, 2021 requesting that the IEs be postponed until after he attended a traumatic brain injury clinic appointment on August 31, 2021. He submitted that the respondent did not have an absolute right to multi-disciplinary assessments, and that each assessment must be reasonable and necessary as a standalone assessment to address the specified benefit. The applicant submitted that if the report from the traumatic brain injury clinic found that the applicant suffered a concussion, then the proposed IEs would not be reasonable or necessary. The applicant requested that the IEs be cancelled but did not advise whether he would attend them.
14On August 30, 2021, the respondent replied to the applicant by mail noting that he had not provided a reasonable explanation for refusing to participate in the IEs and that the examinations would go ahead as scheduled. The respondent outlined additional information regarding why the IEs were reasonably required based on the medical evidence.
15The applicant did not attend any of the scheduled IE. He provided no response to the August 30, 2021 letter, and no explanation for his non-attendance before or after even though the respondent clearly outlined that the IEs would be going ahead as scheduled. The applicant submits that the respondent did not clarify why it did not want to review the upcoming brain injury clinic appointment results and did not provide a valid NOE.
16The applicant does not submit any explanation for his non-attendance at all scheduled IEs, other than that he requested to postpone the IEs until after his traumatic brain injury appointment, because the appointment would assess whether he sustained a concussion. I find that the respondent’s NOE complies with the Schedule, that the respondent properly considered the applicant’s request for postponement and denied that request on August 30, 2021, and that the respondent’s reasons for denying NEBs and requesting the IEs did not hinge on a concussion diagnosis. The applicant did not respond to that communication or confirm/deny his attendance for any of the IEs, and he does not dispute that he did not attend the IEs scheduled for September 10, September 23, September 27, and October 19, 2021.
17I find that the applicant failed to attend properly scheduled IEs without reasonable explanation and is barred from proceeding with NEBs pursuant to section 55(1)2 of the Schedule.
ACBs
18I find that the respondent’s NOEs for ACBs comply with section 44(5) of the Schedule.
19The respondent provided substantive reasons for the section 44 request and has demonstrated efforts to re-schedule the IE multiple times. On April 8, 2021, the respondent provided an EOB in response to a section 25 occupational therapy assessment report dated February 13, 2021. The report opined that the applicant required $10,422.82 per month of attendant care. The respondent indicated that the proposed amount was not consistent with the applicant’s injuries, especially three months post-accident, and there was no medical evidence to support the applicant’s inability to be self-sufficient in an emergency. Specifically, the respondent set out that the applicant did not sustain any fractures or significant impairment to his lower extremities as a result of the accident that would restrict his mobility in an emergency, and so an IE was being scheduled under section 44 of the Schedule. A NOE for an occupational therapy assessment was scheduled for April 27, 2021.
20The applicant’s representative responded to the NOE the same day indicating that the applicant was visiting family in India and his return to Canada was unclear because of the travel restrictions imposed by COVID. The respondent cancelled that April 2021 occupational therapy assessment as a result.
21On July 8, 2021, the respondent provided NOE for the re-scheduled occupational therapy IE on July 22, 2021 to assess entitlement to ACBs. On July 15, 2021, the applicant’s representative responded to the notice, questioning the need to assess the applicant for ACBs given that he had not incurred any of the proposed attendant care services. The applicant’s representative did not confirm whether the applicant would be attending the re-scheduled IE, which the applicant subsequently did not attend.
22On July 27, 2021, the respondent informed the applicant that it would not re-schedule the IE without written explanation for his non-attendance. The respondent reiterated that the applicant’s original in-home virtual occupational therapy assessment proposing the Form 1 (Assessment of Attendant Care Needs) was based entirely on the applicant’s self-report and not on medical documentation. As such, there was a lack of objective evidence to support that the applicant had cognitive difficulties, psychological impairments, or that he sustained injuries that required a personal care aide. The respondent requested that the applicant provide the medical documentation that the occupational therapist relied on to support her recommendations. I accept that the respondent’s NOE complied with section 44(5) of the Schedule. The respondent provided medical reasons that included inconsistent evidence and injuries that did not support an inability to be self-sufficient in an emergency. The respondent also included the name of the assessor, location of the assessment, the assessment date, and that the applicant’s attendance was required. I also accept that the reasons for scheduling an IE to determine entitlement to ACBs remained little changed between the original NOE in April 2021 and the re-scheduled NOE in July 2021.
23In response to an updated progress report and OCF-18 from the applicant’s treating occupational therapist, Sohalb Nehal, dated September 18, 2021, the respondent provided a further NOE for an October 19, 2021 occupational therapy IE that would address ACBs and the proposed OCF-18 for occupational therapy services. On October 15, 2021, the applicant had submitted that there were insufficient reasons to justify an occupational therapy IE, and for the first time he indicated that he could not provide valid consent to the examination. The respondent argues, however, that the applicant was able to provide such consent for his own section 25 assessment months earlier that proposed the FORM 1. The applicant also submitted that an IE conducted by a physician rather than an occupational therapist would be more appropriate.
24The applicant failed to attend the October 19, 2021 IE, which was the fifth attempt by the respondent to schedule an IE addressing entitlement to ACBs. The respondent attempted to schedule one last occupational therapy IE for January 19, 2023, but again the applicant did not attend.
25I find that the respondent’s NOEs comply with section 44(5) of the Schedule. As outlined above, the NOEs include clear details about the benefits in dispute, the applicant’s conditions/medical evidence, and sections of the Schedule being relied upon. I find that the applicant has failed to provide reasonable explanations for his non-attendance at what amounts to six scheduled IEs for ACBs and is barred from proceeding with ACBs pursuant to section 55(1)2.
OCF-18s for chiropractic/physiotherapy/occupational therapy services and psychological and neurocognitive assessments
26I find that the respondent’s NOEs and EOBs related to the OCF-18s in dispute comply with section 44(5) of the Schedule.
27The respondent submits that the OCF-18s related to substantive issues #2 and #3 proposing physiotherapy and chiropractic services were denied on the basis that a section 44 assessment was required. A physiatry IE was scheduled for January 7, 2022, but the applicant did not attend. The same applies to the denied OCF-18s related to substantive issues #4 and #5 proposing a psychological and neurocognitive assessment. The plans were denied on the basis that a section 44 assessment was required to determine if the proposed plans were reasonable and necessary. An IE was scheduled for November 22, 2022, which the applicant again did not attend.
28According to the respondent, it denied the OCF-18 proposing chiropractic services (substantive issue #6) because it was waiting for medical opinions from its IE assessors, but the applicant had not attended those IEs. That’s why the respondent requested reasons for the applicant’s non-attendance. The same applies to the EOB related to substantive issues #7, #9, and #10. The respondent submits that it denied the plans because the applicant remained non-compliant with section 44.
29The applicant submits that the NOE related to the denial of OCF-18s for chiropractic and physiotherapy services (substantive issues #2 and #3) uses boilerplate language and contains very little reference to early post-accident medical evidence. The applicant also submits that the medical reasons relied upon in the NOE were essentially copied from an August 20, 2021 correspondence regarding previous IEs. As a result, the applicant submits the NOE is inadequate. The applicant relies on the same argument with respect to a NOE related to psychological and neurocognitive assessments (substantive issues #4 and #5) and submits that an IE conducted by a psychologist could not adequately assess neurocognitive issues.
30With respect to a further chiropractic treatment plan, occupational therapy treatment plan, and two additional psychological assessments (substantive issues #6, #7, and #9), the applicant submits that the respondent relied on previous section 44 non-compliance without referencing which previous section 44 IEs were relevant in assessing these benefits.
31The fact remains that the applicant has not attended any of the nine section 44 IEs scheduled by the respondent. Having reviewed the NOEs related to the OCF-18s in dispute, I find that the respondent’s NOEs and EOBs comply with section 44(5) of the Schedule. Again, the respondent clearly identifies the purpose of the assessment, the date/time/location of the assessment, the names of the assessors, and justifiably requests reasons for the applicant’s non-attendance given his history. The respondent identifies that its assessors’ opinions are needed before the reasonableness and necessity of subsequent OCF-18s can be addressed. I also find that the applicant’s reasons for non-attendance are not reasonable. The NOEs are adequate, and while the applicant may prefer to have a physician assess entitlement to a psychological and neurocognitive assessment, I accept that it is not outside of the scope of practice for a psychologist to conduct the IE. I do not find that the respondent relied on boilerplate language. As a result, the applicant is barred from proceeding with these OCF-18s pursuant to section 55(1)2.
COSTS
32Contrary to the applicant’s written submissions, the respondent has not sought costs for this matter. The applicant, however, has requested costs in the amount of $1,000.00 for reviewing submissions and preparing a response for the preliminary issue hearing. I find that the respondent has not acted unreasonably, frivolously, vexatiously, or in bad faith during these proceedings and therefore the applicant’s request for costs is dismissed.
ORDER
33For the reasons above, the applicant is barred from proceeding to a substantive issue hearing for all accident benefits claimed in the application. The application is dismissed. The date for the substantive issue hearing shall be vacated.
34The applicant’s request for costs is denied.
Released: October 9, 2024
___________________________
Tyler Moore
Vice-Chair