Licence Appeal Tribunal File Number: 24-003787/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:
Timothy Percival
Applicant
and
Intact Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Jefrey Moorley, Counsel
For the Respondent:
Modasir Rajabali, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Timothy Percival (the “applicant”) was involved in an accident on December 4, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Intact 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 attend an insurer’s examination under section 44 of the Schedule?
3The substantive issues are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 12, 2024 ongoing?
ii. Is the applicant entitled to $4,417.60 for occupational therapy, proposed by Novo Health in a treatment plan dated December 13, 2023?
iii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant may proceed with his application on the substantive issues. Although the respondent made reasonable efforts to schedule the examination for a location that is convenient to the applicant, the applicant has also provided a reasonable explanation for his non-attendance. I therefore choose to exercise my discretion under section 55(2) to allow the application to proceed.
ANALYSIS
Background
5The initial disability certificate indicated that the applicant’s injuries prevented him from carrying on a normal life. Medical records indicated that the applicant sustained various injuries as a result of the accident, including a concussion. The respondent scheduled s. 44 insurer’s examinations (IEs) in the spring of 2023 with a general practitioner and an occupational therapist in Thunder Bay, Ontario. The applicant attended these assessments and, given the findings of those assessors, the respondent determined that the applicant continued to be entitled to NEB.
6Upon receipt of s. 25 neuropsychological assessment and psychological assessment reports in late 2023, by letter dated January 12, 2024, the respondent requested that the applicant attend further IEs to address his ongoing entitlement to NEB, and to determine if the plan for occupational therapy services was reasonable and necessary. The assessments were scheduled as follows:
i. psychological assessment (February 1, 2024 in Thunder Bay),
ii. neurological assessment (February 9, 2024 in Toronto)
iii. orthopaedic assessment (February 9, 2024 in Toronto), and
iv. occupational therapy assessment (March 26, 2024 in Thunder Bay).
7The applicant’s representative advised the respondent that the applicant would not attend the assessments in Toronto, because the applicant was not capable of flying given his impairments which include vertigo, poor working memory, and other issues that made air travel impractical. The applicant requested that the orthopaedic and neurological assessments be re-scheduled to take place in Thunder Bay.
8The respondent advised that the vendor, Focus Assessments, did not have any orthopaedic or neurological assessors in Thunder Bay. The respondent also advised that the vendors proposed by the applicant’s representative also did not have the required specialists in Thunder Bay, noting that an orthopaedic surgeon from Thunder Bay had previously retired.
9The applicant’s representative wrote to the respondent on February 13, 2024 that the applicant was not “medically able to travel to the appointment”, so he could not attend. As suggested by the applicant’s representative, the respondent inquired about the possibility of virtual or paper assessments but was advised by the vendor that only the psychological IE could be conducted virtually; all others needed to be completed in-person.
10The respondent conceded that if the applicant attended the psychological assessment and was found to meet the test for NEB from a psychological perspective, it would forego the orthopaedic and neurological IEs. Ultimately, however, the IE psychologist concluded that the applicant did not suffer a complete inability to carry on a normal life from a psychological perspective.
11By letter dated March 1, 2024 the respondent advised that the NEB was suspended given the applicant’s non-attendance at the orthopaedic and neurological IEs scheduled for February 9, 2024 in Toronto.
12On April 11, 2024, the applicant’s nurse practitioner, April Pilon, provided a medical note indicating that the applicant is unable to travel due to health reasons.
13The orthopaedic and neurological assessments were rescheduled in Toronto, and an occupational therapy assessment was scheduled in Thunder Bay. The applicant objected to the proposed location of the examinations in Toronto but agreed to attend the occupational therapy assessment in Thunder Bay.
14At issue is whether the respondent made reasonable efforts to schedule the assessments for a day, time and location that are convenient for the applicant, pursuant to section 44(9)(2)(i) of the Schedule.
The law
15Section 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.
16Section 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.
17Section 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.
18Sections 55(2) and (3) of the Schedule provide that, despite section 55(1)2, the Tribunal may still permit the application to proceed, with or without terms.
The respondent made reasonable efforts to schedule the assessments at a convenient location for the applicant
19The applicant submits that he has a bona fide reason for why he is unable to attend examinations outside of Thunder Bay – he has medical conditions that prevent him from travelling.
20The applicant submits that the vendor – Focus Assessments – has had orthopaedic and neurology assessors attend Thunder Bay. He provided examples of redacted notices of examinations from other claimants for an orthopaedic assessment with Dr. Omar Dessouki through Focus Assessments scheduled in Thunder Bay for August 2024. He included examples of other neurologists, including Dr. Ghazala Basir, whose primary location of practice is in Thunder Bay. The applicant also provided a medical staff directory for the Thunder Bay Regional Health Sciences Centre which identify a number of orthopaedic and neurology specialists.
21I agree with the respondent that the convenience of the location is based on reasonableness not perfection, and that it took all of the necessary steps possible to attempt to locate a vendor or an IE neurologist or orthopaedic surgeon that was able to conduct the IEs in Thunder Bay.
22Correspondence between the respondent and Focus Assessments indicates that the respondent inquired about specialists in Thunder Bay, but was advised that they did not have an orthopedic or neurological assessor. The respondent reached out to five other vendors, Axia, HVE, Evolve, ARS, and Viewpoint, in February 2024 who confirmed that they did not have neurological or orthopaedic assessors in Thunder Bay. HVE reported that they may have assessors in Sault Ste. Marie, but the applicant’s representative refused. The respondent notes that the neurologist suggested by the applicant, Dr. Basir, was not on the roster for any of the five vendors. Notes indicate that further inquiries were made by Focus Assessments to other assessors to see if they would travel to Thunder Bay, but both Dr. Gharsaa and Dr. Yee declined. Dr. Dessouki was not added to the roster with Focus until August 2024.
23I find that the evidence demonstrates that the respondent made reasonable efforts to schedule the IEs for a location that is convenient to the applicant, and has attempted to accommodate the applicant by paying for his travel and accommodations.
Section 55
24The applicant requests that the Tribunal use its discretion to allow the application to proceed despite the non-compliance. He submits that he has a reasonable excuse for his non-attendance given that he is medically unable to travel.
25The respondent did not make any submissions on whether I should exercise my discretion under section 55 to allow the application to proceed.
26I find that the respondent made reasonable efforts to schedule the IEs for a location that is convenient for the applicant, and the applicant has not attended. However, I find that the applicant has provided a reasonable excuse for his non-attendance. He has complied with the requested IEs to the best of his ability, having attended assessments with a general practitioner, psychologist, and occupational therapist in Thunder Bay, in 2023 and 2024. According to his treating nurse practitioner, he is unable to travel for medical reasons.
27The parties find themselves in unfortunate circumstances where both appear to have made best efforts to accommodate the other. This is not a situation where the applicant has deliberately frustrated the respondent’s ability to obtain any IEs. The applicant has attended five assessments so far, and the medical evidence supports that he is unable to travel to attend the others requested by the respondent. Further, the respondent has made reasonable efforts to schedule the requested IEs at a location convenient to the applicant, without success. While it is procedurally unfair for the respondent to have to proceed to a hearing without the benefit of orthopedic and neurological insurer’s examinations where it has complied with section 44(9)2i, it is still the applicant’s burden to demonstrate entitlement to benefits, and the prejudice to the would be greater if he was barred from proceeding with his claim for benefits where his medical condition prevents him from being able to comply with his obligations under section 44.
28Weighing the prejudice to the parties, considering the consumer protection nature of the legislation, the fact that the applicant has a reasonable excuse for his non-attendance (being medically unable to travel to attend the assessments) and given that the respondent already has IE reports in its possession, I exercise my discretion afforded by section 55(2) to allow the application to proceed to the hearing as scheduled.
ORDER
29The applicant may proceed with his application before the Tribunal.
Released: March 13, 2025
Kate Grieves
Adjudicator