Licence Appeal Tribunal File Number: 23-003851/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:
Danuta Milton
Applicant
and
Waterloo Insurance
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Denis Chubar, Paralegal
For the Respondent:
Sunjay Mistry, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Danuta Milton, the applicant, was involved in an automobile accident on September 5, 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 the respondent, Waterloo Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2In its written hearing submissions, the respondent raises the preliminary issue of the applicant’s failure to attend insurer’s examinations under s. 44 of the Schedule. As such, the respondent submits that the applicant should be barred from proceeding with her application pursuant to s. 55(1) of the Schedule.
ISSUES
3The issues to be decided in the hearing are:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
Is the applicant entitled to $3,195.84 for chiropractic services proposed by E Clinic United Healing, in a treatment plan (“OCF-18”), submitted on March 25, 2021?
Is the applicant entitled to $1,920.53 for psychological services proposed by E Clinic United Healing, in an OCF-18 submitted on March 27, 2021?
Is the applicant entitled to $2,883.64 for physiological services proposed by E Clinic United Healing, in an OCF-18 submitted on June 2, 2021?
Is the applicant entitled to interest on overdue payments of benefits?
RESULT
4The applicant is statute-barred from proceeding with her application, due to her failure to attend insurer’s examinations under s. 44 of the Schedule. I decline to exercise my discretion under ss. 55(2) and (3) to permit her to continue her application despite her non-compliance.
ANALYSIS
Failure to attend s. 44 insurer’s examinations – Parties positions
5In its written hearing submissions, the respondent raised the issue of the applicant’s failure to attend s. 44 insurer’s examinations (“IEs”). It submits that it had scheduled psychological and general practitioner (“GP”) IEs on July 7, 2021, and July 14, 2021, to address the issue of the Minor Injury Guideline, and the three treatment plans in dispute. The applicant provided one day’s notice of her non-attendance, and they were rescheduled to August 12, 2021, and August 16, 2021. The applicant did not attend these IEs, and they were rescheduled to February 11, 2023, and February 21, 2023. The applicant failed to attend these IEs as well.
6The respondent submits that it has attempted to reschedule the IEs numerous times and accommodated the applicant’s request for a virtual psychological IE. Despite these efforts, the applicant has not attended any of the scheduled examinations and as a result, no IEs have been completed to date. The respondent argues both the psychological IE and the GP IE were reasonably necessary to assess the applicant’s entitlement to the claimed benefits and that its notices complied with s. 44(5) of the Schedule. It submits that the inability to obtain the requested IEs has prejudiced its ability to assess the applicant’s claim and injuries fairly and effectively. Further, the respondent submits that the applicant has not provided any reasonable explanation for her failure to attend the scheduled and rescheduled IEs.
7Given the applicant’s failure to attend at all of the properly scheduled s. 44 assessments, the respondent submits that the applicant is statute-barred from proceeding with her application pursuant to s. 55(1)2 of the Schedule.
8Despite having the right of reply, the applicant did not provide any reply submissions for this written hearing. As such, she did not provide any submissions on the issue of her s. 44 non-attendance.
Law
9Section 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.
10Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44 but the insured person has not complied with their attendance.
Applicant is barred from proceeding with her application pursuant to s. 55(1)2
11I find that the respondent has established that the applicant failed to attend properly scheduled IEs without reasonable explanation.
12The respondent has led evidence that it has scheduled and rescheduled the proposed psychological and GP IEs multiple times. I agree with the respondent that a psychological IE and a GP IE are reasonably necessary to determine whether the applicant was entitled to the requested psychological treatment and chiropractic services. I further find that the IEs were properly scheduled in that the notices of examination complied with s. 44(5) of the Schedule. The applicant’s non-attendance has prejudiced the respondent in its ability to assess her impairments and appropriately adjust the claim.
13Further, the applicant has not provided any explanation for her failure to attend, nor has she provided any submissions on the issue of s. 44 non-attendance. Given that the applicant failed to attend properly scheduled IEs and did not provide a reasonable explanation for her non-attendance, the applicant is statute-barred from proceeding with the issues in dispute pursuant to s. 55(1)2 of the Schedule. Finally, despite the reply opportunity, the applicant has not made any submissions that would persuade me to exercise my discretion under ss. 55(2) and (3) to permit her to continue her application despite her non-compliance. I see no basis to exercise my discretion in that direction and I decline to do so.
Interest
14Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that no benefits are owing, accordingly, no payments are overdue.
ORDER
15The applicant is statute-barred from proceeding with her application, due to her failure to attend insurer’s examinations under s. 44 of the Schedule.
16The application is dismissed.
Released: February 27, 2025
Ulana Pahuta
Adjudicator