Licence Appeal Tribunal
24-014340/AABS-PI
Licence Appeal Tribunal File Number: 24-014340/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:
Felix Clerigo
Applicant
And
Allstate Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Meghan Fyall, Counsel
For the Respondent:
Pete Yoo, Counsel
Heard:
By way of written submissions
OVERVIEW
1Felix Clerigo (the “applicant”) was involved in an accident on June 26, 2022, 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 Allstate Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At a case conference held on February 18, 2025, a number of issues in dispute were set to be heard at the substantive videoconference hearing scheduled for August 6, 2025. The respondent also raised a preliminary issue to be addressed at this preliminary issue hearing.
PRELIMINARY ISSUE IN DISPUTE
3The preliminary issue to be decided in this hearing is:
i. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule?
SUBSTANTIVE ISSUES
4The substantive issues set to be heard at the upcoming substantive 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 (“MIG”) limit?
Is the applicant entitled to attendant care benefits in the amount of $5,808.21 per month from November 12, 2022 to date and ongoing?
Is the applicant entitled to $2,503.05 for physiotherapy, proposed by Ajax Rehabilitation Centre in a treatment plan (“OCF-18”) dated December 8, 2022?
Is the applicant entitled to the services proposed by Innovative Occupational Therapy Services, as follows:
i. $6116.10 for occupational therapy, in an OCF-18 dated July 14, 2022; and
ii. $2,200.00 for an attendant care assessment, in an OCF-18 dated July 14, 2022?
- Is the applicant entitled to the services proposed by Oshawa Physiotherapy and Rehabilitation, as follows:
i. $2,200 for a physiatry assessment, in an OCF-18 dated November 16, 2022;
ii. $2,200 for a psychological assessment, in an OCF-18 dated October 20, 2022; and
iii. $2,200 for a chronic pain assessment, in an OCF-18 dated December 5, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is statute-barred from proceeding to the substantive hearing with the following treatment plans, due to non-attendance at scheduled s. 44 IEs:
i. OCF-18 dated December 8, 2022 in the amount of $2,503.05 for physiotherapy services;
ii. OCF-18 dated November 16, 2022 in the amount of $2,200 for a physiatry assessment;
iii. OCF-18 dated October 20, 2022 in the amount of $2,200 for a psychological assessment; and
iv. OCF-18 dated December 5, 2022 in the amount of $2,200 for a chronic pain assessment.
6The applicant may proceed to the substantive hearing on the remaining substantive issues in dispute.
ANALYSIS
Law - Section 44
7Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
8The 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.
9Section 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 s. 44, but the insured person has not complied. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE. The Tribunal may, under s. 55(2) of the Schedule permit an insured person to apply to the Tribunal despite a failure to comply with s. 44, subject to terms and conditions.
Background and parties’ positions
10The respondent submits that the applicant has failed to attend any scheduled IEs. On January 9, 2023, it scheduled an occupational therapy IE, a General Practitioner (“GP”)/physiatry IE and a psychological IE to assess the applicant’s entitlement to all of the substantive benefits in dispute. When the applicant failed to attend all of the IEs, the respondent submits that it then rescheduled the assessments by way of a subsequent NOE dated October 18, 2023. The applicant’s counsel sent correspondence dated November 5, 2023 stating that the applicant would not attend the IEs due to deficiencies in the respondent’s NOEs and requested that the respondent’s denials be re-adjudicated. The respondent subsequently rescheduled the IEs, and the applicant’s counsel stated that their position on the applicant’s non-attendance remained the same.
11The respondent submits that its NOEs were compliant with s. 44(5) of the Schedule. The notices explained that it has been over six months since the subject accident, that no compelling evidence has been provided to support a non-MIG injury and they clearly list medical documentation that was requested under s. 33 of the Schedule. The respondent further argues that all of the IEs are reasonably necessary as no IEs had been previously conducted and they were needed to assess the applicant’s requests for psychological and physical treatment and attendant care. Finally, the respondent submits that non-attendance due to purported deficiencies in an NOE is not a reasonable explanation for failing to attend a properly scheduled IE.
12The applicant submits that the respondent’s NOEs were non-compliant with s. 44(5) of the Schedule. All of the NOEs used the same boilerplate reasons, did not specify the benefit in dispute, refer to MIG determination or attendant care benefits and failed to provide specific details regarding the applicant’s medical condition. Further, the applicant argues that the requested IEs were not reasonably necessary. The applicant submits that the respondent did not request IEs until well-after the applicant’s own OCF-18s for various assessments were denied. He further cites the Tribunal decision 18-00838 v. Aviva Insurance Company, 2019 CanLII 14396 (ON LAT) to argue that the respondent’s request for a physiatry, OT and psychological IE undermines the denials of these treatment plans and as such, there can be no proper denial of them.
13The applicant raises the further argument that the respondent’s preliminary issue does not apply to all of the substantive issues in dispute, and as such, is not dispositive of the entire application and should not have been set down for a separate preliminary issue hearing. The applicant argues that for three of the substantive issues listed in the CCRO the respondent failed to send any denial notices prior to sending out the NOEs. Since the OCF-18s and Form 1 had not been denied at the time the NOEs were provided, the applicant argues an IE cannot be requested for these benefits and that these issues cannot be barred pursuant to s. 55(1).
OCF-18 dated December 8, 2022 for physiotherapy services;
OCF-18 dated November 16, 2022 for a physiatry assessment;
OCF-18 dated October 20, 2022 for a psychological assessment;
OCF-18 dated December 5, for a chronic pain assessment.
The respondent’s NOEs are compliant with s. 44(5) of the Schedule
14By way of January 9, 2023, October 18, 2023, November 16, 2023 and November 22, 2023 NOEs, the respondent requested the applicant’s attendance at three scheduled IEs (psychological, GP/physiatry and occupational therapy assessments) and re-scheduled GP and occupational therapy IEs, for all of the benefits in dispute. Similar reasons were provided in each NOE. The applicant argues that none of these NOEs provided a medical and any other reason for the examination, and as such, are non-compliant with s. 44(5) of the Schedule.
15I find that the NOEs were valid notices and complied with s. 44(5). They provided the necessary details of the assessor, the date, time, and location of the assessment. In terms of the medical and any other reasons, the NOEs noted that the medical documentation the respondent had did not support a finding that the applicant had suffered from a non-minor injury, and specifically identified the information that the respondent still required from the applicant. This included family doctor’s clinical notes and records, a decoded OHIP summary, medical imaging reports and medical records from any treating specialists.
16It is well-settled that the insurer’s medical and any other reasons should include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Even if I were to accept the applicant’s argument that the respondent did not provide specific details about his condition, the respondent clearly identified the information it still required. I find that the NOE was clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision. As such, I find that the respondent provided medical and any other reasons compliant with s. 44(5).
The requested IEs were reasonably necessary
17In determining if a requested IE is reasonably necessary, the Tribunal has considered the following criteria (see 17-005291/AABS v. Travelers, 2018 CanLII 13171 (ON LAT)):
i. The timing of the insurer’s request;
ii. The possible prejudice to the other side;
iii. The number and nature of the previous insurer’s examinations;
iv. The nature of the examination being requested;
v. Whether there are any new issues being raised in the applicant’s claim that require evaluation; and,
vi. Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.
18I find that the proposed IEs were reasonably necessary to address the applicant’s entitlement to attendant care benefits, physiotherapy treatment, occupational therapy services, physical and psychological assessments. I find the timing of the requests to be reasonable, and note that no previous IEs had been conducted. There is a nexus between the requested IEs and the applicant’s injuries, and I agree with the respondent that the applicant would suffer minimal prejudice from attending the IE. However, given that no IEs had been previously conducted, the respondent would suffer significant prejudice if it were unable to assess the applicant’s injuries.
19The applicant does not dispute that he failed to attend all of the scheduled and re-scheduled IEs. In his submissions, he states that he has not attended any IE because of repeated deficient NOEs. However, I have found that the respondent’s notices were compliant with s. 44(5) of the Schedule. The applicant further cites the Tribunal decision 18-00838 v. Aviva Insurance Company, 2019 CanLII 14396 (ON LAT) (“A.R.”) to argue that it is disingenuous for the respondent to request IEs for the type of assessments that the applicant was being denied. Given that the respondent had denied the applicant’s requested psychological, occupational therapy and chronic pain assessments, the applicant argues that the respondent cannot now argue that they are reasonably necessary.
20I am not persuaded by the applicant’s argument. In A.R., the decision cited by the applicant, the Tribunal considered whether the respondent had chosen to arrange for their own assessment after being presented with the applicant’s assessment. However, this was in the context of whether a denied treatment plan was reasonable and necessary, not whether such an assessment was reasonably necessary under s. 44(1) of the Schedule. I find that the decision cited by the applicant is distinguishable and of limited persuasive value.
21Given that the applicant failed to attend properly scheduled IEs and did not provide a reasonable explanation for his non-attendance, the applicant is statute-barred from proceeding to the substantive hearing with the OCF-18s for physiotherapy services, a physiatry assessment, a psychological assessment and a chronic pain assessment. However, the applicant submits that the remaining issues in dispute should not be barred pursuant to s. 55(1) of the Schedule.
Remaining substantive issues in dispute
22I find that the applicant is not barred from proceeding to the substantive hearing with the remaining substantive issues in dispute. The applicant submits that he was not provided with a denial notice for the following substantive issues:
i. attendant care benefits in the amount of $5,808.21 per month;
ii. OCF-18 in the amount of $6116.10 for occupational therapy services, in an OCF-18 dated July 14, 2022; and
iii. OCF-18 in the amount of $2,200.00 for an attendant care assessment,
23The applicant submits that the respondent cannot properly request a s. 44 IE with respect to benefits that it had not even denied. He submits that neither he nor his counsel ever received a copy of the applicable denial letters. Further, the applicant argues that the issue of the MIG had never been identified as one of the issues being assessed in the NOEs. As such, the applicant argues that despite his non-attendance at the IEs, he should not be barred from proceeding with these remaining substantive issues in dispute.
24I agree with the applicant. The respondent submits that it had properly denied the Form 1 for attendant care benefits and the OCF-18s for occupational therapy services and an attendant care assessment. As evidence, in its reply submissions the respondent has included Explanations of Benefits (“EOBs”) dated July 18, 2022 and December 27, 2022. However, the applicant has raised the issue of deficiencies in these EOBs. Namely, that unlike other EOBs and NOEs on file, there is no evidence that they were sent to the applicant and his counsel, that the adjuster’s log notes show a discrepancy between who received and reviewed the EOB and who signed it, and the adjuster’s log notes do not indicate if these EOBs were sent to the applicant.
25The applicant further references an adjuster’s log note entry dated October 10, 2023 which references the Form 1 and states “does not appear that we sent correspondence to all parties…It would have only gone to the service provider via HCAI.” I find this, together with the lack of any confirmation that the referenced EOBs were sent to the applicant and his counsel, to be persuasive evidence that the applicant and his counsel did not receive the applicable denials.
26The respondent submits that if the applicant was questioning the lack of EOBs and felt that certain issues should not be subject to the preliminary issue hearing, this should have been raised at the case conference. Given that the applicant did not protest the inclusion of these substantive issues at the case conference, the respondent argues that the applicant should not be permitted to question the lack of EOBs in this hearing. I am not persuaded by the respondent’s argument. I accept the applicant’s explanation that certain evidence, such as the adjuster’s log notes, was only provided after the case conference which brought to light the discrepancies in the EOBs.
27I further agree with the applicant that if no denial letter was sent for the relevant benefits, they could not be properly subject to a NOE. This is not a situation where the applicant was disputing the sufficiency of the underlying denial, but rather, that he did not receive any denial at all. Even if I accept that an NOE can be issued with respect to benefits that had not been denied, I find that this is an appropriate circumstance to use the discretion afforded to me under s. 55(2) to allow these substantive issues to proceed.
28With respect to the remaining issues of MIG determination, interest and an award, I agree with the applicant that these issues are linked to the OCF-18s going forward to the substantive hearing. Moreover, I agree with the applicant that MIG determination was never identified as an issue that was to be assessed at the requested IEs.
29Accordingly, I find that the applicant can proceed to the substantive issue hearing with the remaining substantive issues in dispute.
ORDER
30The applicant is statute-barred from proceeding to the substantive hearing with the following treatment plans, due to non-attendance at scheduled s. 44 IEs:
i. OCF-18 dated December 8, 2022 in the amount of $2,503.05 for physiotherapy services;
ii. OCF-18 dated November 16, 2022 in the amount of $2,200 for a physiatry assessment;
iii. OCF-18 dated October 20, 2022 in the amount of $2,200 for a psychological assessment; and
iv. OCF-18 dated December 5, 2022 in the amount of $2,200 for a chronic pain assessment.
31The applicant may proceed to the substantive hearing on the remaining substantive issues in dispute.
Released: May 6, 2025
Ulana Pahuta
Adjudicator