Licence Appeal Tribunal File Number: 24-013803/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:
Paramjit Grewal
Applicant
and
Peel Mutual Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Gurpreet Farmaha, Counsel
For the Respondent:
Jonathan Schrieder, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Paramjit Grewal (the “applicant”) was involved in an automobile accident on March 8, 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 Peel Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Prior to bringing this application, the applicant brought a previous application on February 14, 2024 (“prior application”) seeking entitlement to the same benefits that are currently in dispute. The respondent filed a response on March 1, 2024, raising a preliminary issue that the prior application should be barred due to the applicant’s failure to attend s. 44 insurer’s examinations (“IEs”). The parties agreed to enter into a tolling agreement and the applicant withdrew the prior application. In the tolling agreement dated July 12, 2024, the parties agreed to extend the limitation period set out in the Schedule pursuant to conditions including that the applicant would attend IEs completed by an orthopedic surgeon, a neurologist, and an occupational therapist with respect to all the disputed benefits by October 9, 2024. The applicant also agreed to endeavour to provide updated medical records to the respondent in advance of the IEs.
3The respondent raises a preliminary issue that the applicant did not attend certain IEs and therefore should be barred from proceeding to a hearing pursuant to s. 55 of the Schedule.
PRELIMINARY ISSUE IN DISPUTE
4The preliminary issue to be decided is:
i. Is the applicant barred from proceeding to a hearing for all the benefits claimed in this application because she failed to attend an insurer’s examination under s. 44 of the Schedule?
RESULT
5The applicant is not barred from proceeding to a hearing for the benefits claimed in this application.
ANALYSIS
6I find that the applicant is not barred from proceeding to a hearing for all the benefits claimed in this application.
7Section 44 of the Schedule provides that an insurer may require an insured person to be examined at an IE to assess entitlement to a benefit under the Schedule, but not more than is reasonably necessary. A proper notice under s. 44(5) must state the medical and any other reasons for the examination; whether the insured’s attendance is required at the IE; the name, title and designation of the assessor conducting the IE; and the date, time, and location of the assessment. The insurer shall make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured.
8Pursuant to section 55(1), an insured person shall not apply to the Tribunal if the insured has not complied with a s. 44 request.
9Section 55(2) allows the Tribunal to “permit an insured person to apply” despite a missed IE, and s. 55(3) allows the Tribunal to impose terms and conditions on this permission. The insured person has the onus to demonstrate that the circumstances merit the exercise of the Tribunal’s discretion to permit the application to proceed.
10The respondent seeks an order barring this application pursuant to s. 55 of the Schedule for the applicant’s failure to comply with s. 44.
11The respondent submits that the applicant attended an orthopedic examination on October 18, 2024, but that she did not attend the occupational therapy (“OT”) assessment and the neurology assessment. The respondent further submits that the applicant did not produce her updated medical records pursuant to the timeline stipulated in the tolling agreement.
Occupational therapy assessment
12I find that the applicant was not obligated to attend the OT assessment because the respondent’s Notices of Assessment (“NOAs”) did not comply with s. 44(5)(a) of the Schedule.
13The respondent refers to two NOAs dated February 28, 2022 addressed to the applicant, which provided her with details of the assessments, including an occupational in home assessment to take place on March 8, 2022. The NOAs advised that further to the medical and other reasons set out in the Explanation of Benefits (“EOBs”) dated February 14 and 15, 2022, IEs were needed to determine if the OT services as well as the attendant care benefits (“ACBs”) were reasonable and necessary from a physical, neurological, and psychological perspective.
14The respondent put into evidence the EOB dated February 14, 2022, which relied on the following information in its request for an IE to determine the applicant’s eligibility for two treatment plans for OT services:
i. One of the goals in the treatment plans was to “maximize functional restoration and address barriers impeding normal daily function” and there was an indication that the assessment would involve a detailed exploration into the applicant’s functional cognitive abilities, psycho-emotional and physical impairments impeding restored return to normal daily activities.
ii. In a psychological IE report dated February 1, 2022, the assessor noted that the applicant was able to reach the goal of her thought process in a logical and coherent manner; her pragmatic communication skills and her ability to provide historic information were satisfactory; and she was able to spontaneously elaborate on her responses.
iii. The assessor further noted that the applicant returned to work full time, continuing to perform the same duties with no reported performance problems at work, although at home she is performing less cooking and housecleaning due to pain.
iv. Based on the psychological IE, the assessor does not indicate a cognitive impairment.
v. The applicant did not participate in the previously scheduled orthopedic and neurological assessments.
15The respondent also put into evidence the EOB dated February 15, 2022 which relied on the following information in its request for an IE to determine the applicant’s eligibility for ACBs:
i. The respondent believed that the applicant’s medical documentation indicates that she sustained, from a physical perspective, predominantly uncomplicated soft tissue injuries to the head, cervical spine, thoracic spine, lumbar spine, sacroiliac joints, and pelvis.
ii. The applicant did not suffer a substantial inability to perform the essential tasks of her employment as a general warehouse associate.
iii. She did not appear to have a complete or substantial inability to perform housekeeping and home maintenance tasks, or tasks of daily living.
iv. There does not appear to be objective medical documentation demonstrating that she sustained a cognitive impairment.
v. The applicant did not participate in the previously scheduled orthopedic and neurological assessments.
vi. The attendant care needs report from the September 4, 2021 assessment had not been submitted to the respondent.
16The respondent submits that the applicant did not attend for the OT in home assessment, and she did not provide a reason. The respondent put into evidence the NOA dated April 11, 2022, rescheduling the assessment at the applicant’s request. The NOA indicates that the applicant did not attend the OT IE scheduled for March 8, 2022 or the orthopedic IE scheduled for March 10, 2022. The IE with respect to ACBs, OT services and chiropractic therapy was rescheduled for April 22, 2022. The NOA contained the details of the examination and referred the applicant to the medical and other reasons that were outlined in the EOBs dated February 14 and 15, 2022.
17The respondent submits that the applicant did not attend the April 22, 2022 assessment and did not provide a reason. The respondent put into evidence a letter dated May 18, 2022, to the respondent from the applicant’s counsel, advising that the applicant was willing to attend an OT assessment, and requesting that it be rescheduled.
18The respondent submits that after entering into the tolling agreement, it once again rescheduled the OT in home assessment to take place on August 30, 2024. In an email dated August 16, 2024, the applicant’s counsel confirmed that the applicant would attend this assessment. The NOA dated August 21, 2024 that was provided to the applicant was put into evidence. In an email to the respondent dated August 22, 2024, the applicant’s representative requested transportation to the assessment, and on August 28, 2024, they requested a Punjabi interpreter. The respondent submits that it made these arrangements.
19The respondent submits that on August 29, 2024, the applicant’s representative advised that the applicant would be unable to participate in the assessment due to an emergency and apologized for the last-minute cancellation. The respondent put into evidence the NOA dated August 30, 2024, rescheduling the assessment to September 23, 2024.
20The respondent refers to an email dated September 25, 2024, to the respondent from the applicant’s legal representative advising that the applicant did not attend the September 23, 2024 IE due to inadvertence, and requesting that it be rescheduled. The respondent submits that it had incurred $2,065.64 in late cancellation, no-show, and translation fees related to the applicant’s failure to attend four properly scheduled OT in home assessments and it declined to schedule a fifth assessment.
21Among other arguments, the applicant submits that the respondent’s NOAs did not comply with s. 44 of the Schedule, as they did not provide the mandatory “medical and any other reasons” for the requested examinations.
22The applicant refers to the decision of M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (“M.B.”), where the Tribunal held that s. 44 requires insurers to provide clear, meaningful, and specific reasons for any requested examination. The applicant submits that generic references or reliance on earlier correspondence, without proper inclusion or explanation in the notice itself, are insufficient. The applicant further argues that where an insurer does not comply with its notice obligations, s. 55 cannot be invoked to bar an application.
23In reply, the respondent submits that it provided the applicant with NOAs indicating the benefits in respect of which each assessment was being conducted. The respondent further submits that the NOAs complied with s. 44 of the Schedule in that they contained “medical and any other reasons” for the requested examinations, and that it provided the applicant with various EOBs setting out the need for each assessment.
24The respondent also argues that the applicant expressly consented to attending the OT and neurology assessments on numerous occasions, repeatedly requested that they be rescheduled and agreed to the tolling agreement which required her to attend the assessments.
25Although I am not bound by other decisions of the Tribunal, I agree with the reasoning in M.B. In its reasons, the Tribunal held that “sufficiency of notice is always at play whenever an insurer relies on s. 55(1)2.” The Tribunal set out that, at the very least, the “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. The Tribunal went on to say that an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies.
26The Tribunal in M.B. also addressed the insurer’s argument that the insured in that case had repeatedly agreed to attend the IEs. The Tribunal held that the insurer cannot rely on s. 55(1)2 to bar the insured’s application unless it had provided her with sufficient notice, which it had not. The Tribunal went on to find that holding the insured to her agreement to attend the IEs would be tantamount to finding that she waived the insurer’s obligation to provide her with sufficient notice. The Tribunal noted that while the Schedule contemplates several instances in which insurers may waive the regulation’s requirements, it makes no provision for an insured to do the same.
27Prior to the tolling agreement, the last OT assessment was scheduled to proceed on April 22, 2022. In a letter to the respondent dated May 18, 2022, the applicant’s counsel requested that it be rescheduled. The assessment was rescheduled after the tolling agreement, to August 30, 2024, over two years and four months later.
28I note that the NOA dated August 21, 2024, indicates: “Further to our previous correspondence, please be advised that we have scheduled Insurer’s Examination(s) for you to attend. Find below the details of each assessment scheduled.” The details provided are the name of the assessor, the location, the date, and the type of examination, i.e., In Home Assessment.
29Even if the previous NOAs contained medical and other reasons, given the significant gap of time since the previously scheduled assessment, I find that the NOA for the August 30, 2024 IE should have contained clear language, including the medical and other reasons for the examination. I find that this NOA does not refer to the specific benefit or determination at issue, and it does not identify the medical and other reasons for the examination, nor does it specify which of the applicant’s impairments warrant further investigation or why. Further, the NOA does not indicate the date(s) of the “previous correspondence” being referred to.
30For these reasons, I find the respondent’s NOA dated August 21, 2024 does not meet the requirements of s. 44(5).
31The respondent rescheduled the OT assessment to September 23, 2024. I note that the corresponding NOA dated August 30, 2024 contains the same language as the NOA dated August 21, 2024. For these reasons, I find that the respondent’s NOA dated August 30, 2024 does not meet the requirements of s. 44(5).
32Section 55(1)2 provides that an insured person shall not apply to the Tribunal if they have not complied with a section 44 notice that is “in accordance with this Regulation.” Section 44(5)(a) of the Schedule is clear: the insurer “shall give the insured person a notice” setting out the “medical and any other reasons for the examination.” Since I have found that the NOAs dated August 21, 2024 and August 30, 2024 did not contain “medical and any other reasons for the examination,” I find that the applicant was not obligated to attend the OT assessments scheduled for August 30, 2024 and September 23, 2024 because the respondent’s NOAs did not comply with s. 44(5)(a) of the Schedule.
Neurology assessment
33I find that the applicant was not obligated to attend the neurology assessment because the respondent’s NOA did not comply with s. 44(5)(a) of the Schedule.
34The respondent put into evidence the NOA addressed to the applicant dated October 27, 2021, providing details of a neurology IE to take place on December 10, 2021 with respect to OT services and chiropractic therapy. The NOA indicated that while the applicant had made a complaint of headache and had been referred to a concussion clinic in March 2021, the respondent had not received any documentation to support the diagnosis of a concussion or any medical documentation from a concussion clinic. The NOA also lists the applicant’s injuries as set out in her medical records and indicates that the respondent takes the position that her predominant injury falls within the definition of “minor injury” as defined in the Minor Injury Guideline (“MIG”). The respondent provided the applicant with another NOA dated December 3, 2021 confirming the date of the assessment.
35The respondent submits that the applicant did not attend for the assessment, and she did not provide a reason. The respondent put into evidence an EOB addressed to the applicant dated December 18, 2021, advising the applicant that she was in non-compliance due to her nonattendance and that the assessment was required to assess her ongoing eligibility to the benefits. The EOB goes on to state that the respondent would not be able to assess her ongoing eligibility for benefits pending her participation in all IEs and receipt of the completed reports. She was also advised that she did not have the right to bring an application to the Tribunal until she complied with s. 44 of the Schedule.
36The respondent refers to an EOB addressed to the applicant dated January 18, 2022, following up with her about the missed neurology assessment, and indicating that it had not received a reasonable explanation for the applicant’s failure to attend the assessment, nor a request to reschedule the assessment, or written confirmation that she attended any rescheduled assessment.
37The respondent submits that when the applicant was removed from the MIG on February 15, 2022, an updated EOB was sent to her in relation to proposed chiropractic treatment, explaining that since the applicant had not participated in the previously scheduled neurology assessment, it was unable to determine if she had sustained a neurological impairment in the accident, and could therefore not determine if her request for medical and rehabilitation benefits was reasonable and necessary. I note that the EOB dated February 15, 2022, described in paragraph 14 above, refers to the applicant’s eligibility for ACBs and not chiropractic treatment.
38The respondent also refers to two NOAs addressed to the applicant dated February 28, 2022, which provided her with the details of a neurology assessment scheduled for March 21, 2022 in relation to ACBs and OT services, submitting that the applicant did not attend for the assessment or provide a reason for her non attendance. Reference to the NOAs dated February 28, 2022 and the reasons for the assessment are set out above at paragraphs 12, 13 and 14.
39The respondent submits that it rescheduled the neurology assessment at the applicant’s request. It refers to the corresponding NOA dated April 11, 2022 addressed to the applicant, containing details of the IE and rescheduling it to May 27, 2022 in relation to ACBs, OT services, and chiropractic treatment. The NOA contained the details of the examination and referred the applicant to the medical and other reasons that were outlined in the EOBs dated February 14 and 15, 2022.
40The respondent submits that on May 18, 2022, counsel for the applicant wrote to the respondent, advising that the applicant would not attend the neurology assessment until the respondent provided additional information about the reasonableness and necessity of the assessment.
41The respondent further submits that after entering into the tolling agreement, it rescheduled the neurology assessment again to take place on September 20, 2024. The respondent put into evidence the corresponding NOA dated August 21, 2024, addressed to the applicant.
42The respondent refers to an email dated September 25, 2024, to the respondent from the applicant’s representative advising that the applicant unintentionally failed to attend the September 20, 2024 IE, and requesting that it be rescheduled. The respondent submits that it had incurred $2,251.41 in late cancellation, no-show, and translation fees related to the applicant’s failure to attend four properly scheduled neurology assessments and it declined to schedule a fifth assessment.
43The respondent also submits that on August 30, 2024, it made a s. 33 request for updated medical records to assess a proposed OT assessment, and that these were not produced until March 21, 2025, despite a term in the tolling agreement that the applicant would endeavor to produce updated medical records in advance of s. 44 assessments intended to be completed by October 9, 2024. The respondent further submits that these medical records are insufficient to allow it to determine if the disputed plans are reasonable and necessary without the s. 44 OT and neurology assessments.
44Prior to the tolling agreement, the last neurology assessment was scheduled to proceed on May 27, 2022. The assessment was rescheduled after the tolling agreement, to September 20, 2024, over two years and three months later.
45I note that the NOA dated August 21, 2024, indicates: “Further to our previous correspondence, please be advised that we have scheduled Insurer’s Examination(s) for you to attend. Find below the details of each assessment scheduled.” The details provided are the name of the assessor, the location, the date, and the type of examination, i.e., Neurology.
46As I indicated above, even if the previous NOAs contained medical and other reasons, given the significant gap of time since the previously scheduled assessment, I find that the NOA for the September 20, 2024 IE should have contained clear language, including the medical and other reasons for the examination. I find that this NOA does not refer to the specific benefit or determination at issue, and it does not identify the medical and other reasons for the examination, nor does it specify which of the applicant’s impairments warrant further investigation or why. Further, the NOA does not indicate the date(s) of the “previous correspondence” being referred to.
47For these reasons, I find the respondent’s NOA dated August 21, 2024 does not meet the requirements of s. 44(5) of the Schedule, and therefore the applicant was not obligated to attend the neurology assessment scheduled for September 20, 2024.
48Accordingly, I find that the applicant is not barred from proceeding with her application.
ORDER
49The applicant is not barred from proceeding to a hearing for the benefits claimed in this application.
Released: June 2, 2025
___________________________
Laura Goulet
Adjudicator