Citation: [AJ] v. Co-operators General Insurance Company, 2026 ONLAT 24-002921/AABS

Licence Appeal Tribunal File Number: 24-002921/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:

[AJ]

(A minor by their litigation guardian, [SDP])

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Dina Mejalli-Willis

APPEARANCES:

For the Applicant:

Alexandra L Patruno, Paralegal

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1[AJ], the applicant, was involved in an automobile accident on June 9, 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.

2The applicant is disputing entitlement to four treatment plans, an award and interest. The respondent has raised a preliminary issue to be addressed before the substantive issues.

PRELIMINARY ISSUE

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 (“IE”) under section 44 of the Schedule?

SUBSTANTIVE ISSUES

4The substantive issues to be decided are:

i. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Innovative Occupational Therapists Inc. in a treatment plan /OCF-18 (“plan”) dated February 9, 2024?

ii. Is the applicant entitled to $6,060.50 for occupational therapy services, proposed by Innovative Occupational Therapists Inc. in a plan dated July 18, 2024?

iii. Is the applicant entitled to $2,200.00 for an occupational therapy assessment, proposed by Jelena Ulemek in a plan dated July 23, 2024?

iv. Is the applicant entitled to $8,275.87 for a speech language pathology assessment and treatment, proposed by MCA Ltd. in a plan dated August 13, 2024?

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

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

RESULT

5The applicant is barred from proceeding with his application under section 55 of the Schedule, as he failed to attend an IE scheduled by the respondent under section 44 of the Schedule. The application is dismissed.

ANALYSIS

Preliminary Issue – Is the applicant statute-barred from proceeding to the Tribunal?

6I find that the applicant is barred from proceeding to the Tribunal regarding all the issues in dispute in this application by section 55(1)2, because of non-compliance with section 44 of the Schedule.

7Section 44(1) of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to invoke its rights to an IE. This section stipulates that this must not be done more often than is “reasonably necessary”.

8Section 44(9)(2)(iii) of the Schedule requires an insured person to co-operate with the examination and to submit to all reasonable examinations requested by the examiner.

9The requirements for a Notice of Examination (“NOE”) are set out in section 44(5) of the Schedule:

i. 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) of the Schedule permit an insured person to apply to the Tribunal despite a failure to comply with section 44, subject to terms and conditions.

Background

11Based on the materials provided by both the applicant and the respondent, the following background information is uncontested by the parties. On February 28, 2024, the respondent denied the applicant’s claim for an occupational therapy assessment proposed by Ms. Ulemek of Innovative Occupational Therapists Inc. in a treatment plan dated February 9, 2024, and sought medical information from the applicant, including records from his family physician and other medical specialist involved in his care.

12Subsequently, the applicant filed an application with the Tribunal on March 6, 2024, to dispute the respondent’s denial. A case conference was held on August 7, 2024, and a written hearing was scheduled for May 9, 2025.

13In the meantime, the applicant was assessed by Occupational Therapists, Andrea Clubbe and Jelena Ulemek per section 25 of the Schedule and an Occupational Therapy Pediatric Assessment Report dated August 2, 2024 was produced. Ms. Clubbe and Ms. Ulemek recommended that the applicant be seen by his pediatrician regularly, be referred to a speech language pathologist for assessment and monitoring as recommended, receive occupational therapy, monitoring and re-assessment in 6-8 months, ongoing follow up with a dietician, a referral to Grandview Kids (Oshawa) Early Years Program, and access to education and resources for the applicant’s parents. Ms. Clubbe and Ms. Ulemek did not comment on causation and prognostication, advising that both are outside the scope of occupational therapy practice.

14Subsequently, the respondent received treatment plans for (i) a second occupational therapy assessment; and (ii) occupational therapy services, both proposed by Innovative Occupational Therapists Inc. The respondent denied both treatment plans by letter dated August 8, 2024, and sought the medical records of the pediatric consultation with Dr. Muhammad Hamid as well as any other relevant medical information.

15The last of the treatment plans in dispute proposed a speech language pathology assessment and treatment by MCA Ltd. This plan was denied by the respondent on September 4, 2024, who again sought the medical records of Dr. Hamid and other medical specialists involved in the applicant’s care.

16Subsequently, Dr. Neilank Jha, Neurosurgeon commissioned a section 25 report dated October 2, 2024, and opined that, being on the cusp of pre-maturity and the scalp hematoma and depressed skull fracture, the applicant is at a real and substantial risk of cognitive and emotional/behavioural impairments and should have ongoing monitoring.

17By way of letter dated October 31, 2024, the respondent advised the applicant that they require him to undergo an examination on February 6, 2025, with Dr. Jeffrey Kobayashi, Neurologist to confirm the nature of his injury, causation and to seek recommendations, further to the ongoing disputes regarding entitlement of benefits as listed in the applicant’s application to the Tribunal.

18On November 12, 2024, the applicant served on the respondent and filed with the Tribunal, a Notice of Motion seeking to add the three treatment plans listed at paragraph 4(ii), (iii) and (iv) above to the issues in dispute.

19The next day, on November 13, 2024, the respondent advised the applicant that they received the records of Dr. Hamid on September 16, 2024, and the report from Dr. Jha. The respondent clarified that the examination scheduled with Dr. Kobayashi is to also consider whether the three additional treatment plans, listed at paragraph 4(ii), (iii) and (iv) above, were reasonable and necessary.

20By Order dated December 11, 2024, Adjudicator Evans granted the applicant’s request to add the three additional treatment plans to the issues in dispute in this application.

The proposed neurology assessment was reasonably required

21The respondent submits that the request for the proposed IE was reasonably necessary including the timing of the request. The respondent argues that the IE was scheduled upon receipt of Dr. Jha’s report dated October 2, 2024, in which Dr. Jha opined that the applicant’s accident-related injuries will potentially cause cognitive and emotional/behavioural impairments. The respondent claims that until receipt of Dr. Jha’s report, the medical records produced by the applicant did not support the proposed treatment plans and did not associate the applicant’s speech and developmental issues to the skull fracture but rather to his pre-existing intrauterine growth retardation (“IUGR”) diagnosis. The respondent states that the applicant’s failure to attend the IE has prejudiced the respondent’s ability to dispute almost $19,000.00 in benefits at the hearing.

22The applicant disputes that the respondent’s request for the proposed IE is reasonably necessary based on the respondent’s timing of the request. The applicant argues that the respondent did not act expeditiously and should have scheduled the proposed IE at the time the treatment plans were proposed, or at a reasonable time thereafter, given the medical documentation that was available following the hospital discharge, the highly sensitive nature of the applicant’s injuries and because the matter concerns an infant applicant. The applicant argues that that respondent’s failure to act in a timely manner should not prejudice the applicant’s entitlement to benefits. The applicant does not, however, dispute that the notice of examination was compliant with section 44(5).

23I have considered the following criteria in determining whether the proposed IE is reasonably necessary (see 17-005291/AABS v. Travelers, 2018 CanLII 13171 (ON LAT)):

i. The timing of the insurer’s request;

ii. The possible prejudice to both sides;

iii. The number and nature of the previous insurer’s examinations;

iv. The nature of the examination being requested;

v. Whether there are any new issues being raised in the applicant’s claim that require evaluation; and

vi. Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.

24Having considered the above factors, I find that the proposed IE was reasonably necessary to address the applicant’s entitlement to all the treatment plans that are in dispute in this application, and that it was scheduled in a timely manner.

25I find that it was not until the respondent received the section 25 report of Dr. Jha, in early October 2024, that it was reasonable for the respondent to schedule the proposed IE, as Dr. Jha commented on the causal connection between the applicant’s pre-accident condition, his accident-caused injuries and residual symptoms. I am persuaded by the respondent’s argument that until that time, the records that the respondent had on file, including the records that followed the hospital discharge, did not support the need for the proposed IE, as they referenced pre-accident growth issues, a resolution of the infant applicant’s accident-related injuries, and they did not address any causal connection between the applicant’s post-accident residual symptoms.

26In September 2022, the applicant received the records of [a hospital], at which the applicant was born and then treated at in the aftermath of the accident. These records confirm that the applicant was treated for mild jaundice following his birth and was diagnosed with IUGR. The records also confirm that, as a result of the accident, the applicant suffered a left parietal skull fracture, with thin overlying scalp hematoma with no acute intracranial hemorrhage. Upon discharge, the applicant’s parents were reassured that the skull fracture and hematoma would heal on its own.

27The respondent received the records of the [a doctor] at some point after applicant’s counsel received them on April 15, 2024. The records of [a doctor] confirm that the skull fracture had healed, and that the applicant was discharged from the neurosurgeon. The records also confirm that the parents were concerned with issues regarding growth and a referral was made to paediatrician, Dr. Hamid for suspected failure to thrive.

28The respondent subsequently received the section 25 Occupational Therapy Pediatric Assessment Report dated August 2, 2024. Ms. Clubbe and Ms. Ulemek noted concerns raised by the parents regarding failure to thrive, language delays, behaviour concerns and long-term impacts of the head injury. The applicant presented with average performance in the physical, cognitive and social-emotional domains with below average in the communication and adaptive behaviour domains. These delays were interpreted as mild. Ms. Clubbe and Ms. Ulemek made several recommendations but could not comment on causation or prognosis.

29The respondent then received the records of Dr. Hamid on September 16, 2024. These records confirm that Dr. Hamid referred the applicant to Grandview Kids for delayed speech and language. The records also confirm that the applicant was gaining weight appropriately and meeting developmental milestones. The records of Grandview Kids were not provided by the parties.

30On review of these records, I agree with the respondent that the timing of the proposed IE was reasonably necessary upon receipt of Dr. Jha’s report of October 2, 2024, even considering the applicant’s injuries and age. The applicant had not submitted a treatment plan until almost two years post-accident, and the medical records/reports that were in the possession of the respondent referenced a skull fracture that had healed, growth issues experienced by the applicant since birth, and no evidence that the applicant’s post-accident residual symptoms are related to the accident. Dr. Jha’s opinion on causation was new medical evidence that warranted evaluation. I also find that the respondent’s notice of the proposed IE on October 31, 2024, approximately 2.5 months after submission of the last treatment plan dated August 13, 2024, was within a reasonable amount of time considering the limited evidence establishing causation until service of Dr. Jha’s report. As such, I find that the respondent’s request for the proposed IE to be reasonably necessary and timely.

31Further, considering the other criteria, as listed at paragraph 23 above, I also find that the proposed IE was reasonably necessary given that it was the first ever IE requested by the respondent since the collision. I also find that the nature of the proposed in-person IE with a paediatric neurologist to be appropriate given the applicant’s reported symptoms, the new information provided by the Neurosurgeon, Dr. Jha, linking these symptoms to the collision, and the fact that Dr. Jha did not assess the applicant in-person.

32Lastly, I find that the respondent’s request that the applicant undergo the proposed IE was not prejudicial to the applicant as he was given three months advance notice, had never undergone a section 44 assessment and $19,000.00 in treatment plans had been submitted on his behalf. It would be prejudicial to require the respondent to attend this hearing and respond to the section 25 assessment of Dr. Jha, without an opportunity to obtain its own assessment of the applicant.

Was there a reasonable explanation for non-attendance?

33The respondent submits that there is no reasonable explanation for the applicant’s failure to attend the proposed IE, that he deliberately chose to disregard the mandatory attendance requirement, and that the applicant’s lack of co-operation is in direct contravention of Adjudicator Evans’ Motion Order dated December 10, 2024.

34The applicant acknowledges that he did not attend the proposed paediatric neurology assessment on February 6, 2025, but claims that he was in India with his parents. The applicant further claims that the applicant has not refused to attend the assessment, he remains willing to do so upon his return to Canada and that the respondent’s failure to act in a timely manner should not prejudice the applicant’s entitlement to benefits. Lastly, the applicant submits that the urgency required in dealing with the applicant’s claim was recognized by Adjudicator Evans’ in his Motion Order dated December 10, 2024, and should be afforded persuasive weight by me to protect the applicant’s developmental trajectory and access to necessary medical care.

35The respondent’s notice of the proposed IE was dated October 31, 2024, three months before the IE date of February 6, 2025. Before me is an email exchange in which respondent’s counsel advises applicant’s counsel, on March 6, 2025, that the applicant did not attend the proposed IE. Respondent’s counsel suggests to applicant’s counsel that the hearing be adjourned so that the IE could be rescheduled.

36In response, applicant’s counsel advised by email dated March 13, 2025, that the applicant “may not be available for an assessment for some time”. Applicant’s counsel did not wish to delay this hearing and noted that “[a]t the heart of this issue is the insurer’s failure to assess [AJ] within a timely manner.” The parties did not direct me to any subsequent correspondence between them that advises when the applicant was expected to return to Canada or if the IE was rescheduled.

37While the applicant may have been in India on the date of the proposed assessment, I find that he was given more than enough time to arrange for his return to Canada. If a return to Canada before the IE was not possible, I find that the respondent offered to reschedule the IE to allow for the applicant’s attendance, but the applicant does not appear to have taken the respondent up on this offer. Instead, applicant’s counsel vaguely advised that he would not be available for “some time” for attendance at an IE, notwithstanding the fast-approaching hearing date and the urgency argument raised in his submissions.

38Given these facts, I find that there was no reasonable explanation provided for the applicant’s non-attendance. Although Adjudicator Evans did not order the attendance of the applicant at the proposed IE, he did grant the request of the applicant to add three issues to this hearing given the young age of the applicant and the issues raised regarding his psychological development, emphasizing “that the parties work together to move this application forward to the hearing”. Adjudicator Evans also noted that he “need not order the applicant to attend the insurer’s examination as the Schedule speaks for itself” and warned of the risk “that the respondent may raise s. 55(1)2 of the Schedule as a defence” if the applicant did not attend the scheduled IE.

39I find that the applicant did not work co-operatively with the respondent in attending the scheduled IE or in accepting its offer to reschedule. Rather, the applicant chose to remain in India, not attend the proposed IE when the hearing regarding four treatment plans was approaching and risk that his non-attendance would result in the respondent raising a section 55(1)2 defence. The applicant further did not advise when he would be returning from India, but instead, his counsel stated that he would not be “available for some time”. In my view, the applicant’s non-attendance is not in line with the urgency that is stressed throughout in his submissions.

40To allow the applicant to proceed with his application with the opinion of Dr. Jha in hand, would be prejudicial to the respondent who is left with no responding opinion due to the applicant’s non-attendance. While a dismissal of this application would also cause prejudice to the applicant as he is unable to access the proposed treatment, he was aware of the risk and chose to accept it.

41Therefore, I find that the applicant is barred, under section 55(1)2 of the Schedule from proceeding with his application, due to a failure to comply with section 44 without reasonable explanation.

ORDER

42The applicant is barred from proceeding with his application under section 55 of the Schedule, as he failed to attend a properly scheduled section 44 assessment. The application is dismissed.