Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-005836/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:
Trudy Drinkwalter
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Nancy M McAuley, Counsel
For the Respondent:
Alexandra Wilkins, Counsel
HEARD: In Writing
OVERVIEW
1Trudy Drinkwalter, the applicant, was involved in an automobile accident on September 28, 2023, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2Is 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 under s. 44 of the Schedule?
SUBSTANTIVE ISSUES
3The 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?
ii. Is the applicant entitled to $2,183.88 for physiotherapy services, proposed by Tyler Hastings in a treatment plan/OCF-18 (“plan”) submitted November 15, 2023?
iii. Is the applicant entitled to $1,714.64 for a social work assessment, proposed by Larissa Maunula in a plan submitted December 11, 2023?
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 to a hearing on all of the substantive issues in dispute, because they failed to attend insurer’s examinations.
5As the applicant is barred from proceeding, it is not necessary for me to examine the substantive issues in dispute.
6The application is dismissed.
PRELMINARY ISSUE ANALYSIS
Is the applicant barred from proceeding to a hearing pursuant to s. 55(1)2 of the Schedule?
7The respondent filed a notice of motion on March 25, 2025, requesting permission to add the above-stated preliminary issue to this written hearing. That motion was granted by the Tribunal on March 26, 2025.
8Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit.
9Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44 but the insured person has not complied with their attendance.
10The respondent submits that the applicant has refused to attend an insurer’s examination, and as such, they should be barred from proceeding to a hearing.
11To support their claim, the respondent has included correspondence between the respondent and applicant’s counsel. The respondent sent two letters to the applicant dated October 31, 2024, informing the applicant that they would be required to attend Insurer’s Examinations (identified below). The timeline working up to this notice of IE is as follows:
i. November 15, 2023: Applicant submits an OCF-18 (Issue ii in the issues in dispute, above) requesting physiotherapy.
ii. December 11, 2023: Applicant submits an OCF-18 (issue iii) requesting a social work assessment.
iii. December 20, 2023: Insurer denies the second OCF-18, and requests supportive medical documentation to support the applicant’s claim that her injuries are non-minor in nature. Specifically, the respondent requested the Clinical Notes and Records from Dr. Patricia Elepano, hospital records and a release to access files related to a separate MVA from August 30, 2022.
iv. May 8, 2024: Applicant files a dispute with the LAT.
v. July 30, 2024: Respondent sends a letter which, amongst other items, reminds the applicant that they are still awaiting medical information.
vi. September 10, 2024: A Case Conference is held between the two parties with the LAT.
vii. October 23, 2024: The respondent reports that the original request for medical information was received. Of note: This date is in dispute with the applicant, who submits that the medical information was received by the insurer on August 23, 2024.
viii. October 31, 2024: The respondent sends two letters informing the applicant they would be required to attend two Insurers Examinations. The insurer scheduled an assessment with Psychologist Dr. Jay McGrory scheduled for December 5, 2024, and with General Practitioner Dr. Pankaj Bansal, on December 16, 2024.
12The respondent included correspondence from the applicant’s counsel dated November 1, 2024, which stated, “It is an improper use of insurer examinations to obtain an update, particularly at this juncture where we in the midst of a dispute with the LAT” and “Miss Drinkwalter will not be attending the insurer examinations.”
13The insurer rescheduled the psychological examination with Dr. McGrory for February 6, 2025, and the examination with Dr. Bansal for February 18, 2025. They informed the applicant that the IE’s were rescheduled via a letter dated January 12, 2025. The applicant’s counsel replied with “At this time our client will not be attending the insurer examination further to our letter dated November 1, 2024.”
14The respondent submits they have made efforts to work with the applicant, but the refusal to attend an IE requires them to deny requested benefits, and to ask the Tribunal to bar the applicant from proceeding with a hearing. (Of note: The Schedule says the applicant ‘shall not apply’ to the LAT to dispute a denial for failing to attend a s.44 Insurers Examination.)
15The applicant submits the respondent had multiple opportunities to schedule IE’s before the Tribunal application was filed, but it had refused to do so. She submits they could have also requested IE’s before the case conference, and that allowing a preliminary issue at this stage is a violation of procedural fairness.
16In support of her claim, the applicant included a letter dated April 9, 2024 from her counsel to the respondent, requesting “if it is your intention to maintain your (MIG) position, I would ask that you schedule an insurer examination without delay.”
17In her submission, the applicant confirms that the final piece of medical information requested by the insurer was not provided to the respondent until August 23, 2024.
18S.44(5) of the Schedule outlines the rules for an insurer to arrange a s.44 examination. I find that the notice given to the applicant, dated October 31, met the requirements in that a) it contained the medical and any other reasons for the examination, b) notified the applicant they would be required to attend in person, c) provided the name of the regulated health professional who would be conducting the examination, and d) outlined the day, time and location of the examination.
19I further find the insurer has complied with s.44(9)(2), having made reasonable efforts to schedule the examination for a day, time and location that are convenient. This is supported by the attempt to reschedule, even in the face of the applicant’s refusal to attend.
20I find that the applicant did not provide what I find to be a reasonable explanation for her refusal to attend the IEs in either her Response to the Notice of Motion or in her submissions on the issues in dispute. Indeed, from the correspondence between the applicant and respondent, and based on her submissions, the applicant maintains that it is simply inappropriate for an insurer to schedule IE’s after the LAT application has been filed. The applicant has not pointed or directed me to any evidence in support of her position.
21Given the lack of a reasonable explanation for the applicant’s refusal to attend properly scheduled s.44 insurer examinations, I find the respondent has, on the balance of probabilities, met its onus. I find that the applicant is barred from proceeding to a hearing for the substantive issues in dispute in this application.
Substantive Issues in Dispute
22As I have found that the applicant is barred from proceeding to a hearing, it is not necessary for me to address the substantive issues in dispute.
ORDER
23I find that the applicant is barred, pursuant to s. 55(1)2, from proceeding to a hearing for the substantive issues in dispute in this application.
24The application is dismissed.
Released: February 9, 2026
Jeff Chatterton
Adjudicator