Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-003566/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:
Jennifer Larsen
Applicant
and
SGI Canada Insurance Services Ltd.
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Michael Ferrante, Paralegal
For the Respondent:
H. Jason Hickman, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Jennifer Larsen (the “applicant”) was involved in an automobile accident on October 25, 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 SGI Insurance Services Ltd. (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 to a hearing for all of the benefits claimed in the application as she failed to attend insurer’s examinations under section 44 of the Schedule?
RESULT
3The applicant is barred from proceeding with her application.
ANALYSIS
4The substantive issues in dispute include the applicability of the Minor Injury Guideline (MIG), four OCF-18s (chiropractic treatment, psychological treatment, a chronic pain assessment and a psychological assessment), interest and an award.
Parties’ Positions
5The respondent submits that the applicant failed to attend a neurological, a psychological and a musculoskeletal insurer’s examination (“IE”). The respondent submits that it provided notice to the applicant that the section 44 IEs were required the examinations to determine the applicant’s entitlement to all of the benefits in dispute, and she failed to comply with her obligation to attend the IEs.
6The applicant submits that she was willing to attend any IEs which she was aware of, but she did not receive the notices of examination, given that she moved around October or November 2022. The applicant also submits that the preliminary issue can only address the applicability of the MIG and one treatment plan for chiropractic services. The applicant submits that the IEs were not arranged to address the remaining issues in dispute, but only to address whether her injuries fell within the MIG.
The Law
7Section 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. A notice under s. 44(5) must state the medical reason for the examination, whether the insured’s attendance is required, the name, title and designation of the person conducting the IE and the date, time and location of same.
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.
9Sections 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 applicant received the notices of examination through her representative
10I am not persuaded by the applicant’s argument that she did not receive the notices of examination. She submits that she did not receive notices because she moved to a new address around October or November 2022, before the notices were sent. There is some disagreement over whether the applicant notified the respondent of the change of address. An email indicates that the applicant notified her insurance broker on February 9, 2023 of a change of address. However, this was after the notice letters were sent, and further, there is no evidence that the new address was provided to the accident benefits adjuster.
11In any event, the notices were provided to the applicant’s legal representative. Pursuant to section 64(2) of the Schedule a notice is deemed delivered to the applicant when faxed to her representative. Despite being raised by the respondent in its initial submissions, the applicant made no submissions on the applicability of section 64(2). Therefore, I find that the notices of examination were properly served on the applicant.
The scope of the notices included all of the benefits in dispute
12The applicant appears to concede that there was a valid denial notice with respect to the OCF-18 for chiropractic services. However, she submits that the respondent only requested that she attend IEs to address the MIG and that one OCF-18. She submits that the notices can only apply to those two issues and not the other OCF-18s because remaining benefits were denied on the basis that her injuries fell within the MIG.
13The denial letters for each of the other benefits also state that the reason for the denial is that the respondent believed that the MIG applies and section 44 assessments would be arranged, and the notice letters indicates that the purpose of the evaluations was to determine whether the MIG applied. If the applicant’s injuries were found to fall within the MIG, then none of the OCF-18s in this dispute would be payable. The applicant made no other submissions with respect to the validity of the denials or notices.
14The notice met the requirements of section 44(5) of the Schedule. Having found a valid notice, the applicant is in breach of section 44. Accordingly, she is precluded by section 55(1)2 from proceeding with her application.
Tolling agreement
15The applicant requested that the Tribunal use its discretionary authority pursuant to section 55(2) and (3) to impose a “tolling agreement” on the parties and set out terms for the applicant’s attendance at IEs and a new deadline for her to refile her application to the Tribunal if benefits remain in dispute. Presumably, the request for a new deadline to file her application is because the limitation period has expired with respect to the OCF-18s in dispute.
16I decline to exercise my authority pursuant to permit the application to proceed. The respondent has been prejudiced by the applicant’s non-attendance at examinations in a timely manner. More than two years have passed since the treatment plans were submitted. The respondent has been unable to assess the applicant or obtain necessary medical evidence as to her impairments.
17It is open to the applicant to submit a new treatment plan should she require further medical and rehabilitation benefits, remedying any prejudice she suffers from being unable to pursue these OCF-18s.
ORDER
18The applicant is barred from proceeding with her application under s. 55 of the Schedule for failing to attend insurer examinations.
19The application is dismissed.
20The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: January 21, 2025
Kate Grieves
Adjudicator