Baidoo v. Co-operators General Insurance Company, 2025 CanLII 69517

Citation: Baidoo v. Co-operators General Insurance Company, 2025 ONLAT 24-014339/AABS-PI

Licence Appeal Tribunal File Number: 24-014339/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:

Vivian Baidoo

Applicant

and

Co-operators General Insurance Company

Respondent

PRELIMINARY ISSUE DECISION AND ORDER

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Meghaa Vaid, Counsel

For the Respondent:

Peter Durant, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Vivian Baidoo, the applicant, was involved in an automobile accident on December 3, 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 the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the case conference held on March 26, 2025, the respondent raised a preliminary issue to be heard prior to the substantive issues in dispute.

PRELIMINARY ISSUE IN DISPUTE

3The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for all of the benefits claimed in her application because she failed to attend insurer’s examinations under s. 44 of the Schedule.

SUBSTANTIVE ISSUES IN DISPUTE

4The substantive issues to be decided in the hearing are:

1. 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?
2. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 8, 2022, to date and ongoing?
3. Is the applicant entitled to $1,300.00 for chiropractic services, proposed by James Kim in a treatment plan/OCF-18 (“plan”) dated January 16, 2023?
4. Is the applicant entitled to $4,130.30 for chiropractic services, proposed by James Kim in a plan dated March 6, 2023?
5. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Paramount Medical Assessments Ltd. in a treatment plan dated January 25, 2023?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant is statute-barred from proceeding with the following treatment plans:

i. OCF-18 dated March 6, 2023 for chiropractic services in the amount of $4,130.30; ii. OCF-18 dated January 25, 2023 for a psychological assessment;

6The applicant may proceed to the substantive hearing with the remaining issues in dispute.

PROCEDURAL ISSUE

7The applicant did not file any submissions for the preliminary issue hearing. The case conference report and order (CCRO) identified the preliminary issue, indicated that it was to be heard prior to the substantive issues, and set out a timetable for the parties’ submissions. I am satisfied that the applicant received notice of this preliminary issue hearing, given that the applicant attended the case conference and the CCRO was sent to her counsel. Therefore, I may proceed with this preliminary issue hearing pursuant to s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S.22.

ANALYSIS

Parties’ positions

8The respondent submits that the applicant has failed to attend properly scheduled insurer’s examinations (“IEs”), without reasonable explanation. By way of a letter dated March 7, 2024 and subsequent Notices of Examination (“NOEs”), the respondent had requested the applicant’s attendance at a psychiatric and a physiatry insurer’s examination (“IE”). The March 7, 2024 letter stated that these IEs were being scheduled to assess the applicant’s entitlement to two previously denied treatment plans, and to determine whether the applicant’s accident-related injuries meet the definition of the Minor Injury Guideline (“MIG”). The respondent further noted that the IE assessors would be asked to comment on the applicability of the MIG and the applicant’s ongoing entitlement to medical and rehabilitation benefits.

9The IEs were scheduled for April 5, 2024 and April 18, 2024. On March 15, 2024 the applicant’s representative confirmed her attendance and requested transportation. On March 28, 2024, the respondent sent a follow-up letter, stating that non-earner benefits (“NEBs”) would also be considered at the IE assessments.

10The respondent submits that the applicant failed to attend both IEs scheduled for April 5, 2024 and April 18, 2024, despite multiple notices and reminders being sent and transportation having been pre-arranged. It sent a letter dated April 11, 2024 advising the applicant that she failed to attend the scheduled psychiatry IE, that her representative had confirmed attendance and transportation had been arranged. The respondent requested an explanation for the non-attendance and asked the applicant to advise of dates for re-scheduling. The applicant was also reminded of the upcoming April 18, 2024 IE, which the applicant also failed to attend. The respondent submits that the applicant has not provided any explanation for her non-attendance.

11The applicant did not provide submissions for this preliminary issue hearing.

Law

12Section 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 reason and any other reasons for the examination; whether the insured’s attendance is required at the IE; the name, title and designation of the person 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.

13Section 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.

14These provisions of the Schedule make it clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. The respondent must first prove that a NOE is compliant with section 44(5) of the Schedule in order to rely on it as a basis to seek a statutory bar under section 55. In seeking such a remedy, the respondent must ensure that its NOE provides specific details of the applicant’s conditions, the benefit in dispute, and any section it relies upon. (See Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318; B.H. v. Aviva Insurance Company, 2018 CanLII 84051 (ON LAT); and T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)). The reasons must be clear enough so that an unsophisticated person can make a well-informed decision on whether to attend the examination.

OCF-18 dated March 6, 2023 for chiropractic services in the amount of $4,130.30;

OCF-18 dated January 25, 2023 for a psychological assessment;

15I find that the respondent’s correspondence and NOEs with respect to these OCF-18s are compliant with s. 44(5) of the Schedule. The March 7, 2024 and March 28, 2024 letters and accompanying NOEs set out the date, time and location of the assessments, the name and specialization of the assessors and indicate that the applicant’s attendance was required.

16The letters also provided sufficient medical and any other reasons for the requested IEs. The March 7, 2024 and March 28, 2024 letters stated that the IEs were being scheduled to determine whether the applicant’s accident-related injuries meet the definition of the Minor Injury Guideline (“MIG”). The respondent further noted that the IE assessors would be asked to comment on the applicability of the MIG and the applicant’s ongoing entitlement to medical and rehabilitation benefits, and identified the two treatment plans in dispute. In terms of medical reasons, the letter made specific reference to whether the injuries fell within the definition of the MIG, provided a clear explanation and principled rationale for the applicant’s attendance at the IE, and included information explaining the consequences for her failure to attend.

17The respondent has led evidence that the applicant failed to attend both the psychiatry and the physiatry IEs. The applicant has not provided any explanation for the non-attendance. Therefore, pursuant to s. 55 of the Schedule, the applicant is precluded from proceeding to a hearing for the OCF-18 dated March 6, 2023 for chiropractic services, and the OCF-18 dated January 25, 2023 for a psychological assessment.

OCF-18 dated January 16, 2023 for chiropractic services in the amount of $1,300.00;

18I find that the applicant is not statute-barred from proceeding to the substantive hearing with respect to this treatment plan.

19Although in its submissions for this hearing the respondent states that its March 7, 2024 and March 28, 2024 letters and accompanying NOEs applied to all of the OCF-18s, from my review of the correspondence, the letters and NOEs do not refer to the OCF-18 dated January 16, 2023 for chiropractic services in the amount of $1,300.00. The NOEs state that the IEs are to address “Medical and Rehabilitation Benefits” and refer back to the March 7, 2024 and March 28, 2024 letters. In these letters, the OCF-18 dated March 6, 2023 for chiropractic services, and the OCF-18 dated January 25, 2023 for a psychological assessment are expressly identified. However, the letters do not specify that IEs were to be conducted with respect to the OCF-18 dated January 16, 2023 for chiropractic services.

20As such, I find that the respondent has not established that the applicant failed to attend a reasonably scheduled IE with respect to this treatment plan. The applicant may proceed to the substantive hearing for the OCF-18 dated January 16, 2023 for chiropractic services.

NEBs

21I find that the applicant is not statute-barred from proceeding to the substantive hearing on the issue of NEBs, as the respondent did not provide a medical and any other reason for requiring an IE to assess NEB entitlement.

22The March 7, 2024 letter did not identify NEBs as one of the benefits to be assessed at the proposed IEs. In the subsequent March 28, 2024 letter, the respondent added the issue of NEBs to the proposed assessments. However, the correspondence did not provide sufficient medical reasons and explanations for why IEs were being requested for NEB entitlement. The March 28, 2024 letter is almost identical to the March 7, 2024 letter. The only new sentence in the March 28, 2024 letter addressing NEB IEs, states “(a)t this time, we would like to review to determine initial entitlement to the Non-Earner Benefits (NEB)”.

23I find that this language is non-compliant with s. 44(5) of the Schedule, as it did not provide any specific details about the applicant’s medical condition or provide the respondent’s rationale as to why an assessment was required to determine NEB entitlement. The language used was boilerplate, and in my view, does not explain to the applicant why the IE was being requested.

24Since the March 28, 2024 letter did not comply with section 44(5) with respect to the NEB IEs, the respondent cannot rely on the remedy available in section 55 of the Schedule to bar the issue of NEB entitlement from proceeding to a hearing.

ORDER

25For the reasons above, I find that the applicant is barred from proceeding to the substantive issue hearing with the following OCF-18s:

i. OCF-18 dated March 6, 2023 for chiropractic services in the amount of $4,130.30; ii. OCF-18 dated January 25, 2023 for a psychological assessment;

26The applicant may proceed to the substantive hearing with the remaining issues in dispute.