Licence Appeal Tribunal File Number: 25-007866/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:
Jamal A. Hersi
Applicant
and
Echelon General Insurance Company
Respondent
PRELIMINARY ISSUE DECISION AND ORDER
ADJUDICATOR: Trina Morissette, Vice-Chair
APPEARANCES:
For the Applicant: Julia Logoutova, Paralegal
For the Respondent: Sue Yingxue Li, Counsel
HEARD: In writing
OVERVIEW
1Jamal A. Hersi, the applicant, was involved in an automobile accident on April 20, 2023, (or April 21, 2023) and sought benefits from Echelon General Insurance Company, the respondent, 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 and applied to the Licence Appeal Tribunal (“the Tribunal”) for resolution of the dispute.
2I note there is a discrepancy regarding the date of loss in this matter. The applicant identified the date of the accident in his application to the Tribunal as April 20, 2023. Other documentation submitted to the Tribunal, such as treatment plans and correspondence, identify the date of loss being April 21, 2023.
3Should this matter proceed to a substantive hearing, the parties will need to confirm the correct date of loss.
PRELIMINARY ISSUE IN DISPUTE
4The preliminary issue to be decided is whether the applicant is barred from proceeding to a hearing for all of the benefits claimed in his application because he failed to attend insurer’s examinations (“IEs”) under section 44 of the Schedule?
RESULT
5The applicant failed to attend section 44 IEs and did not provide a reasonable explanation for his non-attendance.
6The applicant is statute-barred from proceeding with the following issues in dispute:
Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
Is the applicant entitled to $2,227.73 for physiotherapy services, proposed by 2430303 Ontario Inc. in a treatment plan/OCF-18 dated February 6, 2024?
7The application shall proceed, as scheduled, for the following issues in dispute, only:
Is the applicant entitled to $1,050.57 for physiotherapy services, proposed by 2430307 Ontario Ltd. in a plan dated November 6, 2023?
Is the applicant entitled to $3,185.19 for physiotherapy services, proposed by 2430303 Ontario Ltd. In a plan dated November 20, 2023?
Is the applicant entitled to $2,300.00 for an orthopaedic assessment, proposed by 2430307 Ontario Ltd. in a treatment plan dated November 6, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
8Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
9The requirements for a Notice of Examination (“NoE”) are set out in section 44(5) of the Schedule:
If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
(a) The medical and any other reasons for the examination;
(b) Whether the attendance of the insured person is required at the examination;
(c) The name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
(d) If the attendance of the insured person is required at the examination, 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.
10Section 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. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE. The Tribunal may, under section 55(2), permit an insured person to apply to the Tribunal despite a failure to comply with section 44, subject to terms and conditions.
The applicant has not provided a reasonable explanation for his non-attendance
11The substantive issues to be decided in this matter include whether the applicant’s injuries are predominantly minor and therefore subject to treatment within the MIG, four medical/rehabilitation treatment plans (OCF-18s), and interest.
12The applicant does not dispute the validity of the NoEs.
13Based on the parties’ submissions, an initial NoE dated July 26, 2023, was sent to the applicant. The notice identified the OCF-18 in the amount of $3,185.19 dated April 28, 2023 (submitted May 2, 2023) recommending “exercise, multiple body sites” as outlined in the OCF-18. The respondent advised the applicant that his attendance was required and offered him transportation and interpretation services, if required. The notice identified the type of examination required as “medical rehabilitation benefits; applicability of the MIG” to be assessed by Dr. Khaled, general practitioner, on August 15, 2023 at 11:30 a.m. The notice described the MIG and outlined the reasons for the IE as:
We have reviewed this Treatment and Assessment Plan (OCF-18) with the medical documentation provided and compared it to the criteria in the [MIG]. We have determined that your impairment is predominantly a minor injury.
Under Section 38,
a. there is insufficient compelling medical evidence provided by your health practitioner showing that your prior medical condition will not allow for a full recovery under $3,500.00 limit;
b. the medical and other reasons for this denial include: The treatment plan indicates that your injuries are not subject to the [MIG], without the provision of medical documentation or any compelling medical evidence.
It is our position that the [MIG] applies and the treatment claimed is not reasonable or necessary.
In accordance with Section 44 of the [Schedule], we have scheduled an [IE] with a qualified Health Practitioner.
14Following the NoE, a letter dated July 28, 2023, from the assessment facility was sent to the applicant confirming the IE with Dr. Khaled (as described above) but also advising of a second IE to be performed by “Rakesh Ratti, Psychology” scheduled for September 7, 2023 at 2:00 p.m.
15The applicant did not attend the IE with Dr. Khaled on August 15, 2023. The IE was rescheduled for September 28, 2023 at 12:15 p.m. by means of an NOE dated August 25, 2023. The applicant did not attend the rescheduled IE. In a letter from the respondent to the applicant dated October 12, 2023, the respondent advised the applicant that it was prepared to reschedule the IE if: (a) the applicant provided confirmation in writing that he will attend the rescheduled appointment; and (b) he provided a reasonable explanation why he was unable to attend the previously scheduled IEs.
16The applicant also did not attend the IE with “Rakesh Ratti, Psychology” on September 7, 2023. In a notice to the applicant dated October 5, 2023, the respondent confirmed the non-attendance, referenced an OCF-18 in the amount of $2,300.00 dated April 28, 2023 and explained that the IE was necessary for the health professional to assess his current health status, but more specifically, to address medical and rehabilitation benefits and the applicability of the MIG. The notice rescheduled the IE with Dr. Ratti to November 9, 2023 at 2:00 p.m. and provided the following reasons:
The treatment plan indicates that your injuries are not subject to the [MIG], without the provision of medical documentation or any compelling medical evidence. We are unable to approve this plan due to the lack of compelling evidence provided by your health practitioner showing that injuries exceed the [MIG]. We require further compelling medical evidence that the malaise and fatigue, disorders of the sleep-wake schedule, dizziness and giddiness as well as nervousness that you are currently experiencing is not subject to the [MIG]. As such, we require a Section 44 [IE] to confirm diagnosis, whether your injuries are minor as defined by the [Schedule] and if the subject plans are reasonable and necessary.
17In a letter to the applicant dated November 21, 2023, the respondent confirmed the applicant’s non-attendance at the IE of November 9, 2023. It advised the applicant that it was prepared to reschedule the IE if the applicant: (a) provided confirmation in writing that he will attend the rescheduled appointment; and (b) if he provided a reasonable explanation as to why he was unable to attend the previous assessments.
18The respondent submits that the OCF-18s, including those in dispute in this application, were denied on the basis that the applicant’s injuries fall within the MIG. A determination of whether the treatment proposed in the OCF-18s is reasonable or necessary could not be properly determined without the applicant’s participation in the proposed IEs. The respondent submits that it has fully complied with the notice requirements of section 44, and that the IEs were reasonably necessary to assess the applicability of the MIG in light of the OCF-18s submitted. It argues that the applicant has not provided confirmation of his intention to attend any rescheduled IEs, nor has he provided a reasonable explanation for his non-attendance.
19The applicant submits that the respondent should not be successful on this preliminary issue because, by the time the IEs were scheduled, the respondent was already prohibited from taking a position that the MIG applies; the respondent was required to pay for the proposed goods and services.
20As I understand the applicant’s submissions, the applicant argues that the denial dated May 16, 2023 of the OCF-18 dated April 28, 2023 (submitted May 2, 2023) in the amount of $3,185.19 was invalid because it did not identify the “goods, services, assessments and examinations described in the treatment and assessment plan”. Instead, the applicant argues that the respondent attached the OCF-18 to the denial which the applicant submits is not a proper substitute for the “description of the services provided” and is contrary to section 38(8) of the Schedule. He argues that the respondent’s failure to comply with section 38(8) invokes section 38(11) which prohibits the respondent from taking a position that the applicant has an impairment to which the MIG applies and instructs the respondent to pay for all goods and services proposed in the plan. Since both IEs were scheduled to address the treatment plan in the amount of $3,185.19 and the applicability of the MIG, and because the denial of this treatment plan was invalid, the applicant argues that the respondent cannot rely on the MIG being a reason the IEs were reasonably necessary.
21In addition, the applicant argues that the denials of most of the other OCF-18s are also invalid, that the respondent never requested that he attend an IE in relation to the other treatment plans in dispute, and never identified the applicant’s failure to attend IEs as a partial reason for the denials.
22I find that the applicant’s reliance on section 38 of the Schedule is not a reasonable explanation for his non-attendance at the scheduled IEs. An argument put forward on section 38 is to determine the applicant’s entitlement to a medical and rehabilitation benefit; it has no bearing and is not relevant to this preliminary issue. Furthermore, section 38(11) only applies to the benefit in question and does not take the applicant out of the MIG altogether. Entitlement to a specific treatment plan, and the triggering of section 38(11), are determinations to be made on its merits at the substantive issues hearing. It is not grounds to support non-attendance at a properly scheduled IE.
23The elements to be determined by the Tribunal on a preliminary issue where the applicant did not attend IEs, as described above, include a determination pursuant to section 44(5) regarding the elements of a NoE, and whether the applicant has satisfied his onus of providing a reasonable explanation for his non-attendance. Here, the applicant does not dispute the validity of the NoEs nor does he provide another explanation for why he did not, or could not, attend the IEs.
24The Schedule is 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. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance. To be clear, the respondent must first establish that a NoE complies with section 44(5) of the Schedule in order for it to rely on it as a basis to seek a remedy pursuant to section 55.
25I find that the NoE dated July 26, 2023 for the determination of the reasonableness and necessity of the April 28, 2023 OCF-18 in the amount of $3,185.19, and the applicability of the MIG, was valid. However, I find that the IE initially scheduled with “Rakesh Ratti, Psychology” on September 7, 2023, was not valid. Nowhere in the NoE of July 26, 2023 did the respondent advise of this IE or provide the other necessary information pursuant to section 44(5) of the Schedule. That being said, I find that the subsequent NoE of October 5, 2023 cured the invalidity of the previous NoE. It was in this notice that the respondent referenced the OCF-18 dated April 28, 2023 in the amount of $2,300.00 and provided the elements of section 44(5) including the reasons for the IE, noted above at paragraph [14].
26I therefore find that the NoEs comply with the requirements for proper notice of an IE. The notices identify the individual OCF-18s, they state that the applicant’s attendance is required, provide the date, time and location of the assessment in a clearly formatted table, and provide the identity and professional designation of the assessor who would be conducting the IE. They offer the applicant accommodations in the event the applicant requires transportation or an interpreter and provide the medical and other reasons, being primarily based on the MIG.
27The notices define the MIG and its limit of $3,500.00, and explain that based on the medical documentation provided, the respondent determined that the applicant’s impairments are predominantly minor and that there was insufficient compelling medical evidence provided by health practitioners showing that the applicant’s medical condition would not allow for a full recovery under the $3,500.00 limit. The NoE of October 5, 2023 goes further to specifically note the applicant’s complaints of fatigue, sleep disorders, dizziness, giddiness and nervousness.
28I find that the notices provide the medical and other reasons for the requested IEs and provide all other information required for a proper and adequate notice under section 44(5) of the Schedule.
29Section 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.
30The scheduled IEs were to determine, in part, the applicability of the MIG. As I have found above, the requests to attend an IE were proper and the applicant has not provided a reasonable explanation for his non-attendance. Pursuant to section 55(1)2, I find that the applicant is statute-barred from proceeding with the issue of whether his injuries are predominantly minor and subject to the MIG (substantive issue #1).
31The respondent submitted a copy of the denial of the treatment plan dated February 6, 2024 in the amount of $2,227.73 which supports that the denial of this treatment plan was based on the applicability of the MIG. Since I have found that the applicant is statute-barred from proceeding with his MIG claim, and this treatment plan being dependent on whether the applicant’s injuries fall within the MIG, the applicant’s claim for this OCF-18 (substantive issue #2) is also barred.
32The parties did not produce the denials of the other three treatment plans. I note that the NoE above referencing a treatment plan in the amount of $3,185.19 refers to an OCF-18 dated April 28, 2023 whereas the treatment plan in dispute in this application, in the amount of $3,185.19, references an OCF-18 dated November 20, 2023. Although the respondent submits that the remaining treatment plans in dispute are also reliant on the MIG, his submissions are not evidence, and I have not been led to any other documentation to support the reasons for the remaining OCF-18s’ denials. I therefore find there is insufficient evidence to support a nexus between these treatment plans and the MIG.
33The Case Conference Report and Order (“CCRO”) in this matter dated October 10, 2025 states at paragraph [5]1.: “(…) Note: The parties agree the MIG limits have not been exhausted and their submissions shall identify the amounts remaining.”
34As there is no evidence before me confirming the remaining balance within the MIG, or that there is a nexus between the three remaining treatment plans in dispute and the MIG, issues #3 to #6 as listed in the CCRO shall proceed to a hearing.
ORDER
35For all the above reasons, I find that:
i. The applicant failed to attend section 44 IEs and did not provide a reasonable explanation for his non-attendance.
ii. The applicant is statute-barred from proceeding with the following issues in dispute:
Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit?
Is the applicant entitled to $2,227.73 for physiotherapy services, proposed by 2430303 Ontario Inc. in a treatment plan/OCF-18 dated February 6, 2024?
iii. The application shall proceed, as scheduled, for the following issues in dispute, only:
Is the applicant entitled to $1,050.57 for physiotherapy services, proposed by 2430307 Ontario Ltd. in a plan dated November 6, 2023?
Is the applicant entitled to $3,185.19 for physiotherapy services, proposed by 2430303 Ontario Ltd. In a plan dated November 20, 2023?
Is the applicant entitled to $2,300.00 for an orthopaedic assessment, proposed by 2430307 Ontario Ltd. in a treatment plan dated November 6, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
Released: February 26, 2026
Trina Morissette
Vice-Chair