Citation: Rana v. Unifund Assurance Company, 2025 ONLAT 23-011002/AABS

Licence Appeal Tribunal File Number: 23-011002/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:

Sushella Rana

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

John Mazzilli

APPEARANCES:

For the Applicant:

Nicholas Whelan, Paralegal

For the Respondent:

Yasar Saffie, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Sushella Rana (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 Unifund Assurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The 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 the applicant failed to attend an insurer’s examination under s.44 of the Schedule?

ISSUES

3The substantive issues in dispute are:

i. 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? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 22, 2021, to October 25, 2023?

iii. Is the applicant entitled to physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre, as follows:

1. $3,795.50 proposed in a treatment plan/OCF-18 (“plan”) submitted November 10, 2021, and denied November 18, 2021;

2. $2,026.55 proposed in a plan submitted March 25, 2022, and denied April 4, 2022; and,

3. $1,417.70 proposed in a plan submitted May 9, 2022, and denied May 12, 2022?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is barred from proceeding with this application, pursuant to s.55(1)2 of the Schedule, for not attending multiple insurer’s examinations (“IE”).

ANALYSIS

The applicant is barred from proceeding to a hearing because she did not attend s. 44 assessments

5I find that the applicant is barred from proceeding to a hearing with this application, because she did not attend s. 44 assessments.

6Section 55(1) of the Schedule states than an insured person shall not apply to the Tribunal under s.280(2) of the Insurance Act, R.S.O. 1990, c. I.8 if the insurer has provided the insured person with notice in accordance with the Schedule that it requires an examination under s.44, but the insured person has not complied with that section. Section 55(2) permits an insured person to apply despite this non-compliance, subject to permission being granted by the Tribunal.

7Section 44(5)(a) states that, if an insurer requires an examination under this section, the insurer shall give the insured person a notice setting out the medical and any other reasons for the examination, whether the attendance of the insured person is required, the name of the person conducting the examination, any regulated health profession to which they belong including their titles, and designations indicating their specialization, if any. The notice must also include 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 is also required.

8The applicant submits the reason for her non-attendance at the IEs is because the respondent’s notices did not contain sufficient information. Specifically, she claims there was no medical and any other reasons provided, and she further submits that the respondent did not provide any indication of the assessment for the non-earner benefit (“NEB”) in dispute. The applicant submits that, due to the respondent’s non-compliant notices, this matter ought to proceed to a hearing on the substantive issues. She submits that the NEB is payable in full, along with all the treatment and assessment plans in dispute, plus interest.

9In addition, the applicant submits that the notices of examination under s. 44 do not state that the NEB was to be assessed by the assessors, and, as such, the notices are insufficient under the Schedule.

10The respondent argues that the applicant should be barred from proceeding to a hearing for all the benefits claimed in this application, as she failed to attend multiple IEs and failed to provide any explanation for her non-attendance. The respondent argues that it scheduled and rescheduled s. 44 assessments on approximately eighteen separate occasions with various assessors. It also submits its notices were adequate. The respondent further argues that the notices were brought to the attention of the applicant and her counsel, and yet the applicant failed to attend multiple IEs and offered no explanation for her non-attendance.

11I am not satisfied by the applicant’s arguments that the respondent’s notices of examination were not proper because I find that the respondent’s notices of examination are compliant with s.44(5) and as such, I find the applicant’s non-attendance at the examinations bars her from proceeding with her claim.

12The applicant did not point me to discrepancies or inadequacies with the approximately eighteen notices sent to the applicant, despite the respondent’s communication with the applicant by way of letters/notices mailed and faxed to her and her counsel regarding the scheduled examinations.

13For example, on March 4, 2022, the applicant submitted an OCF-18 for chiropractic, massage therapy and assessment services. On April 4, 2022, the respondent denied this plan based on the applicant’s medical documentation which is consistent with injuries that are within the minor injury guideline and because the respondent did not have records to verify the applicant’s claim that she sustained a dislocation of her lumbar spine and pelvis to verify that the treatment plan in question was reasonable and necessary.

14The letter further states that the MIG applies, and that the treatment claim is not reasonable or necessary and that it would require and examination under s.44. On April 5, 2022, the respondent followed up with a letter stating that it had scheduled an assessment which was to take place on April 25, 2022, between the hours of 4:30 and 5:30pm with Dr. Mula, physician. In addition, the letter lists the benefits to be addressed as “medical and rehabilitation benefits,” and OCF-18 treatment. I find this correspondence easily complies with the requirements for notice under s. 44 as it contains the date, time, and location of the IE, as well as the benefits to be addressed and the specialty of the assessor. Further in the absence of medical records, the basis for the insurer’s examination is a valid reason for the assessment.

15On April 26, 2022, HVE assessments notified the respondent by way of letter that the applicant failed to attend this scheduled assessment and that three voicemails were left with the applicant with no reply and no reason was provided by the applicant for her nonattendance.

16On May 19, 2022, the respondent informed the applicant that it would require an examination under s.44 because of additional medical documentation that was recently provided. Accordingly, a notice of assessment was sent to the applicant which specified the assessment to take place on June 7, 2022, at 9:30 a.m. to 12:30 p.m. with Dr. Siegal, psychologist and provided a location and the notice noted that the benefits to be addressed are “medical and rehabilitation benefits”. The notice also specified the facility address and provided the applicant with a contact person and contact information.

17On June 8, 2022, the respondent was informed by Dr. Siegel that the applicant did not attend the scheduled assessment. The applicant has failed to attend multiple s. 44 examinations with Dr. Mula and Dr. Siegal that were properly scheduled and rescheduled in accordance with s.44(5) and no reasons were provided for her non-attendance, I find that the applicant is barred from proceeding to a hearing for all the issues in disputes pursuant to s. 55(1)2.

ORDER

18It is ordered that:

i. The applicant is statute-barred from proceeding with this application pursuant to s.55(1)2 of the Schedule.

ii. The application is dismissed.