Licence Appeal Tribunal File Number: 25-000775/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:
Omar Rashid Omar
Applicant
and
Primmum Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Eli Jakubovic, Counsel
For the Respondent:
Karen Klaiman, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Omar Rashid Omar (the “applicant”) was involved in an automobile accident on July 27, 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 Primmum Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent raises a preliminary issue that the applicant did not attend insurer’s examinations (“IEs”) in relation to income replacement benefits (“IRBs”) and in relation to a treatment plan (“plan in dispute”) and therefore should be barred from proceeding to a hearing pursuant to s. 55 of the Schedule.
PRELIMINARY ISSUE IN DISPUTE
3The 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?
RESULT
4The applicant is not barred from proceeding to a hearing for IRBs from August 18, 2023 to July 27, 2024.
5The applicant is barred from proceeding to a hearing for IRBs from July 28, 2024 to date and ongoing.
6The applicant is not barred from proceeding to a hearing for the plan in dispute.
PROCEDURAL ISSUE
7The applicant submits that since he attended IEs as they relate to the plan in dispute, the only issue to be determined in this hearing is whether he is barred from proceeding to a hearing for all the benefits claimed because he did not re-attend IEs for his IRB eligibility. The applicant argues that the respondent’s submissions on the issue of whether he attended IEs with respect to his eligibility for the plan in dispute should be struck from consideration for the purposes of this hearing.
8I find that since the respondent raised the preliminary issue and made submissions that the applicant did not attend IEs with respect to the plan in dispute, the Tribunal must address this argument. Further, I note that the preliminary issue, as specified in the Case Conference Report and Order (“CCRO”) dated May 29, 2025, is a consideration of whether the applicant is barred from proceeding to a hearing for all the benefits claimed in the application (emphasis added). One of the benefits at issue in the application is the plan in dispute. Even if I were to find that the applicant did not attend an IE for the IRB entitlement and was barred from proceeding to a hearing on that issue, this would not affect his ability to proceed to a hearing with respect to the plan in dispute. As such, the issue of whether the applicant attended IEs with respect to the plan in dispute must be considered by the Tribunal to decide whether the applicant is barred from proceeding to a hearing for all the benefits claimed in the application.
9For these reasons, and where neither party filed a motion to amend the CCRO giving rise to this hearing, I have considered the respondent’s submissions on the issue of whether the applicant attended IEs with respect to his eligibility for the plan in dispute.
ANALYSIS
10I find that the applicant is not barred from proceeding to a hearing for the plan in dispute or from IRBs in relation to the pre-104-week mark. However, I find that the applicant is statute-barred from proceeding to a hearing for IRBs in relation to the post-104-week mark.
11Section 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.
12Pursuant to section 55(1)2, an insured person shall not apply to the Tribunal if the insured has not complied with a s. 44 request.
13Section 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.
14The respondent seeks an order barring this application pursuant to s. 55 of the Schedule due to the applicant’s failure to comply with s. 44.
15The respondent submits that the applicant did not attend post 104-week IRB IEs and IEs in relation to the plan in dispute in the amount of $18,024.00.
IRB assessments
16The respondent put into evidence correspondence demonstrating the following:
i. The applicant was entitled to an IRB starting on August 4, 2022.
ii. On June 7, 2023, the respondent advised the applicant that, to determine ongoing entitlement to an IRB, he was required to attend s. 44 examinations with Luigi Grimaldi, kinesiologist, with Dr. Sabrina Ming-Wai Tu, family medicine, and with Dr. Shahriar Moshiri, psychologist.
iii. On August 16, 2023, the respondent advised the applicant that payment of the IRB would be stopped as of August 21, 2023, based on the reports of Dr. Tu, Dr. Moshiri and Mr. Grimaldi.
17The respondent submits that the IRB remained denied, and the applicant filed an application on January 21, 2025, indicating that the time period in dispute for IRBs was from August 18, 2023 and ongoing. The respondent argues that this means that the applicant now intended to dispute the post 104-week period for IRBs. The respondent points out that the accident occurred on July 27, 2022, and the 104-week anniversary of the accident was on July 27, 2024. The respondent argues that since the application was filed in January of 2025, and the duration of benefits for IRBs as indicated by the applicant was from August 18, 2023 and ongoing, the post 104 week period “complete inability test” for IRBs became a new and relevant issue to the application. The respondent also submits that the applicant sent the respondent two s. 25 IRB reports dated January 16, 2025.
18The respondent refers to its letter to the applicant dated January 29, 2025, where it requested a new OCF-3 to determine the applicant’s ongoing entitlement to IRBs and advising that he may be required to attend an IE.
19The respondent refers to the following correspondence:
i. A letter dated January 31, 2025, from the respondent to the applicant, enclosing details of the s. 44 assessments for post 104-week IRBs.
ii. An email dated February 3, 2025, from the applicant’s counsel to the respondent, advising that he was not agreeable to the s. 44 assessments described in the January 31, 2025 letter.
iii. The respondent’s reply to this email on February 3, 2025, where it explained that it had received the applicant’s s. 25 post 104-week IRB reports, that the pre and post 104-week IRBs entail different tests and therefore it had to reschedule the assessments to determine the applicant’s entitlement to post 104-week IRBs.
iv. An email dated February 3, 2025 from the applicant’s counsel advising the respondent that the applicant would not be attending any IRB assessments until either supportive case law was provided or the respondent reinstated the IRBs, paid the arrears owing, and then scheduled post 104-week assessments.
v. An email dated February 5, 2025 from the respondent advising the applicant’s counsel that due to the time that had elapsed since the date of loss, assessors would not do a paper review, and that the assessment must be done in person.
vi. A letter dated May 5, 2025, where the respondent advised the applicant that, even though Dr. Tu determined it was not reasonable and necessary to fund the applicant’s post 104-week s. 25 assessments, it agreed to fund them on a good faith basis in the hopes that the applicant would agree to attend s. 44 post-104-week IRB assessments.
vii. A letter dated May 22, 2025 from the respondent, advising the applicant of its position that the applicant’s injuries did not justify IRBs past the 104-week mark, and indicating that, in accordance with its letter dated February 24, 2025, the applicant’s failure to attend his s. 44 IEs results in a bar to his bringing an application to the Tribunal pursuant to s. 55(1)2 of the Schedule.
20The respondent relies on several decisions as it relates to noncompliance with s. 44. Although I need not reference them all, I note the Tribunal decision of Baskaran v. Co-operators General Insurance Company, 2020 CanLII 98730 (ON LAT) (“Baskaran”), which the respondent submits has a fact scenario identical to this case. In Baskaran, the Tribunal held that a change in the test for entitlement to IRBs post 104 weeks is a change in circumstances, giving the insurer the right to require an insured person to be assessed. The Tribunal determined that the applicant was barred from proceeding with her application because she did not attend IEs for post 104-week entitlement to IRBs.
21The respondent submits that it requires the assessments to help determine whether the applicant meets the test for IRBs post 104-weeks. The respondent further submits that due to the time that has elapsed, paper reviews cannot be conducted for the IRB issue. For these reasons, the respondent submits the assessments are reasonably necessary.
22The respondent submits that it provided the applicant with notice of the examinations in accordance with s. 44 of the Schedule, however the applicant has not attended the assessments to date. As such, the respondent argues, its ability to defend the application has been prejudiced.
23The applicant submits that he attended IE assessments relating to IRBs on June 28, 2023 with Mr. Grimaldi, on July 17, 2023 with Dr. Tu, and on July 25, 2023 with Dr. Moshiri. The applicant further submits that as of August 21, 2023, based on the IE reports, the respondent determined pursuant to s. 37 of the Schedule that the applicant was no longer entitled to any additional IRBs.
24The applicant also submits that he initially applied to the Tribunal on January 5, 2024, within the 104-week period for IRBs, disputing the denial of IRBs from the date of termination to ongoing and that his counsel referred him to Omega Medical on October 29, 2024 for s. 25 assessments. The applicant argues that the instructions in the referral email confirm that the purpose of the assessments was to support the reinstatement of IRBs terminated in August 2023, well before the post 104-week mark. The applicant submits that the s. 25 assessments were clearly intended to support the reinstatement of pre-104 IRBs and to prepare for the hearing and were not intended to assess post 104-week eligibility.
25The applicant further submits that after he filed the current application on January 21, 2025, he received a letter dated January 29, 2025 from the respondent, requesting an updated OCF-3 and advising that s. 44 assessments may be required. The applicant refers to the respondent’s letter dated January 30, 2025, where the respondent scheduled the following s. 44 assessments:
i. February 4, 2025: psychology assessment with Dr. Moshiri.
ii. February 27, 2025: FCE with Mr. Grimaldi.
iii. March 6, 2025: orthopaedic assessment with Dr. Jamie Rusen.
iv. March 12, 2025: vocational and transferable skills analysis with Ms. Ruth Billet.
26The applicant points out that he had already attended the assessment with Mr. Grimaldi two months prior, in December.
27The applicant refers to the respondent’s letter dated January 31, 2025, where it advised the applicant that he was required to attend the above s. 44 assessments to determine post 104-week IRB entitlement. The applicant also refers to his counsel’s reply to the respondent dated February 3, 2025, objecting to the new s. 44 assessments proposed on January 31, 2025, as there was no reasonable basis to compel new assessments since the respondent had already terminated IRBs based on previous IEs.
28The applicant points out that the respondent’s February 24, 2025 letter to the applicant advised that he had not attended the IEs as per the January 31, 2025 letter and was therefore not entitled to the goods and services related to the plan in dispute. The applicant argues that the respondent confused the purpose of their own requests as the January 31, 2025 letter was related to assessments for IEs, and not the plan in dispute.
29The applicant argues that s. 37 of the Schedule governs the process of determining whether an insured person remains entitled to a specified benefit. The applicant refers to the wording of s. 37 where it states that if an insurer wishes to determine whether an insured person is still entitled to a specified benefit, they may require a s. 44 examination. The applicant submits that the wording “still entitled” is significant, and that once an insurer has already terminated a benefit, as in this case, the entitlement no longer exists for the purpose of s. 37.
30The applicant further argues that s. 44 allows an insurer to conduct an examination only to assist in determining if a person “is or continues to be entitled” to a benefit. The applicant submits that this mechanism is contingent on an active benefit or an ongoing entitlement decision, and not a retrospective effort to build a defence file after a denial has already been made.
31The applicant also submits that once the respondent determined that the applicant was not entitled to IRBs, it no longer had the statutory authority to invoke s. 44 assessments to reassess IRB entitlement. The applicant takes the position that a pre-condition to determine post 104-week entitlement is that the benefit must have been paid up to the 104-week mark, which was not done here.
32The applicant further argues that, to permit repeated s. 44 requests after a benefit has been denied opens the door to abuse and undermines the consumer protection aspect of the Schedule. The applicant also submits that the respondent’s use of s. 44 was not tied to an active benefit but was rather aimed at countering the applicant’s s. 25 evidence.
The applicant is entitled to proceed to a hearing for IRBs in relation to the pre-104-week period
33I find that the applicant is not barred from proceeding to a hearing for IRBs from August 18, 2023 to July 27, 2024.
34Although I note that the respondent’s submissions request an order that the applicant is barred from bringing an application for all the benefits claimed in this application because the applicant failed to attend an IE under s. 44 of the Schedule, there is no dispute that the applicant attended IEs with respect to IRBs in relation to the pre-104-week period.
35The respondent’s arguments hinge on the fact that new IEs are required for the post-104-week period as a different legal test applies. It is IEs in relation to this post-104-week period that the applicant refused to attend.
36For these reasons, I find that the respondent has not demonstrated that the applicant is barred from proceeding to a hearing for IRBs in relation to the pre-104-week period as the applicant did not refuse to attend IEs in relation to that period.
The applicant is not entitled to proceed to a hearing for IRBs in relation to the post-104-week period
37I find that the applicant is barred from proceeding to a hearing for IRBs from July 28, 2024 to ongoing.
38I have considered the applicant’s submissions that his s. 25 assessments were not intended to assess his post 104-week eligibility. I note, however, that the applicant did not state that he was not making an application for post-104-week IRBs. The CCRO indicates that the issue in dispute relating to IRB entitlement is from August 18, 2023 “to date and ongoing.” The period at issue does not end on the pre-104-week mark. I also note that the s. 25 reports are dated January 16, 2025, well after the pre-104-week mark period.
39Further, the applicant does not direct me to authority to support his position that a pre-condition to determine post 104-week entitlement is that the benefit must have been paid up to the 104-week mark.
40Although I am not bound by other decisions of the Tribunal, I agree with the reasoning in Baskaran. I find that to allow the applicant in this case to proceed with a hearing on post 104-week IRBs without having attended at the IEs scheduled to address this issue would be procedurally unfair to the respondent. I find that despite the applicant’s position on s. 37, the respondent has authority pursuant to s. 44 of the Schedule to require the applicant to attend for an IE to determine if he is entitled to a benefit. In this case, that benefit would be post-104-week IRBs.
41The applicant did not dispute that the respondent provided a notice compliant with s. 44(5).
42For these reasons, I find that the applicant is barred from proceeding to a hearing for IRBs from July 28, 2024 to date and ongoing because he did not attend an IE under s. 44 of the Schedule.
Assessments in relation to the treatment plan
43For the following reasons, I find that the applicant is not barred from proceeding to a hearing for the plan in dispute.
44The respondent submits that the applicant is claiming benefits for a pain program in the amount of $18,024.00, and that the extent and seriousness of his injuries are subject to debate. As a result, the respondent argues that s. 44 examinations were required to assess entitlement to various benefits.
45According to the CCRO, the plan in dispute was submitted to the respondent on November 7, 2024.
46The respondent refers to its letters to the applicant as follows:
i. A letter dated November 18, 2024, advising the applicant that a s. 44 examination would be scheduled as it was unable to determine if the proposed treatment was reasonable or necessary.
ii. A letter dated November 21, 2024, indicating that the applicant’s attendance was required at the IEs, the name, title, and designation of the assessors conducting the IEs, and the date, time, and location of the assessments. IEs were scheduled with Dr. Tu on December 16, 2024, with Mr. Grimaldi on December 19, 2024, and with Dr. Moshiri on February 4, 2025.
iii. A letter dated January 14, 2025, where it provided the applicant with details regarding the s. 44 addendum pertaining to the plan, including the fact that the applicant’s attendance was not required at the IEs, and that Dr. Tu would be completing the report.
iv. A letter dated February 24, 2025, advising that the applicant did not attend the required IE pertaining to the plan and indicating that his entitlement would be reviewed once he complied with the s. 44 examination.
v. A letter dated April 29, 2025, enclosing the report dated April 25, 2025 of Dr. Tu, and advising that one aspect of the plan for cognitive behavioral therapy (“CBT”) was reasonable and necessary but that this therapy was outside of Dr. Tu’s scope of practice. The letter further indicated that the respondent was unable to determine if the plan was reasonable and necessary and requested the applicant re-submit it to include details such as a breakdown of all treatment sessions required by each assessor, to be reviewed by a psychologist, as recommended by Dr. Tu;
vi. A letter dated June 9, 2025, advising the applicant that Dr. Tu’s s. 44 report indicated that he likely suffered from a cervical strain and lumbar strain because of the accident, both of which are uncomplicated soft tissue injuries, and that IEs would be scheduled to determine his entitlement to the plan, with a date and time to follow. The letter also indicated that the respondent was still waiting for a breakdown of all treatment sessions for the plan, as the existing plan was not clear in what was being sought.
47The respondent submits that it requires the IE assessments to help determine whether the applicant may be entitled to the plan in dispute. The respondent further submits that the plan in dispute contains a request for many different modalities which require an assessment by different assessors. The respondent argues that the applicant attended for the assessment with Dr. Tu, but still needs to go to the assessments that are outside of Dr. Tu’s scope of practice, as she was only able to comment on the CBT aspect of the plan. For these reasons, the respondent submits that the IEs are reasonably necessary.
48The respondent further submits that its Notices of Assessment (“NOAs”) meet the requirements outlined in s. 44 the Schedule; however, the applicant has not attended the assessments to date.
49The applicant submits that on November 7, 2024, the plan in dispute was submitted to the respondent, and that on November 12, 2024, three plans in relation to treatment from Omega (“Omega plans”) were submitted to the respondent.
50The applicant refers to the following correspondence he received from the respondent:
i. A letter dated November 14, 2024, denying the Omega plans, and indicating an intention to schedule IEs.
ii. A letter dated November 18, 2024, denying the plan in dispute, and advising that IEs would be scheduled.
iii. A letter dated November 21, 2024, confirming that in person IEs were being scheduled. The applicant submits that although this letter referenced the plan in dispute, the proposed assessments pertained to the Omega plans submitted on November 12, 2024.
51The applicant submits that he attended the IEs with respect to the plan in dispute on December 16 and December 19, 2024.
52The applicant refers to a fax reminder dated January 21, 2025, sent by the respondent’s IE assessor about the February 4, 2025 psychology assessment with Dr. Moshiri. The applicant submits that this assessment was scheduled to take place on the second hearing day of the LAT application that was proceeding at that time. The applicant refers to the Notice of Videoconference Hearing for that application indicating that the hearing was scheduled for February 3, 4, and 5, 2025. The applicant further submits that on January 21, 2025, the applicant agreed to withdraw that application and filed the current application the same day.
53The applicant refers to the following correspondence:
i. A Notice of Appointment dated January 30, 2025, from the respondent’s assessors, advising of four s. 44 assessments, including a psychology assessment with Dr. Moshiri on February 4, 2025.
ii. A letter from the respondent dated January 31, 2025, advising the applicant that he is required to attend four s. 44 assessments, including the IE with Dr. Moshiri on February 4, 2025, to determine IRB entitlement.
54The applicant refers to an email to the respondent dated February 3, 2025, advising that he was not in agreement to participating in assessments in relation to his IRB entitlement.
55The applicant also refers to the respondent’s letter dated February 24, 2025, advising the applicant that he did not attend the required IEs pursuant to its letter dated January 31, 2025, and was therefore not entitled to the goods and services related to the plan. The applicant points out that the assessments in the January 31, 2025 letter were IRB assessments, and were not related to the plan.
56I have reviewed the respondent’s NOA dated November 21, 2024, and I find that it provides details to the applicant with respect to assessments to be conducted in relation to three plans dated November 12, 2024, and not in relation to the plan in dispute dated November 7, 2024.
57I have also reviewed the respondent’s NOA dated January 31, 2025, and I find that it provides details to the applicant with respect to assessments to be conducted in relation to IRBs, and not in relation to the plan in dispute.
58Section 55(1)2 provides that an insured person shall not apply to the Tribunal if they have not complied with a s. 44 notice that is “in accordance with this Regulation.” Since I have found that the NOAs dated November 21, 2014 and January 31, 2025 were not in relation to the plan in dispute, I find that the applicant was not provided with a s. 44 notice for this plan, and was therefore not obligated to attend the assessments in relation to it.
59For these reasons, I find that the applicant is not barred from proceeding to a hearing for the plan in dispute.
ORDER
60For the above reasons, I find:
i. The applicant is not barred from proceeding to a hearing for IRBs from August 18, 2023 to July 27, 2024.
ii. The applicant is barred from proceeding to a hearing for IRBs from July 28, 2024 to ongoing.
iii. The applicant is not barred from proceeding to a hearing for the plan in dispute.
iv. The hearing as ordered in the CCRO dated May 29, 2025 shall proceed subject to the above.
Released: July 11, 2025
Laura Goulet
Adjudicator