Fidelino v. Wawanesa Mutual Insurance Company, 2026 CanLII 39715

Citation: Fidelino v. Wawanesa Mutual Insurance Company, 2026 CanLII 39715

Licence Appeal Tribunal File Number: 24-013139/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:

John Andrian G Fidelino

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Meghan Fyall, Counsel

For the Respondent:

Priyanka Monpara, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1John Fidelino, the applicant, was involved in an automobile accident on March 17, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing for a non-earner benefit (“NEB”), because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

i. Is the applicant entitled to a NEB of $185.00 per week from July 31, 2023 to March 17, 2024?

ii. Is the applicant entitled to $1,525.84 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated August 9, 2023?

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

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

4In his written submissions, the applicant withdrew the substantive issues listed in the Case Conference Report and Order dated March 3, 2025 (“CCRO”) at paragraph 5 as follows: issues 5(3), 5(4), 5(5), 5(6), 5(7), 5(9), 5(10) and 5(11). Therefore, these substantive issues have been removed from the issues in dispute above.

RESULT

5For the preliminary issue, I find the applicant is barred from proceeding with his claim for an NEB in the amount of $185.00 per week from July 31, 2023 to March 17, 2024.

6I find that the applicant is not entitled to the treatment plan for chiropractic services dated August 9, 2023.

7The respondent’s denial of the disputed plan for chiropractic services was proper notice in accordance with s. 38(8) of the Schedule.

8The applicant is not entitled to interest or an award.

ANALYSIS

Preliminary Issue

The applicant is statute-barred from proceeding with his claim for an NEB

9I find that the applicant is statute-barred from proceeding with this application for an NEB due to non-compliance with s. 44 of the Schedule.

10Section 44(1) 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. 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”.

11Section 44(9)(2)(iii) of the Schedule requires an insured person shall attend the examination and submit to all reasonable examinations requested by the examiner.

12The 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.

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 s. 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 IE that is reasonably necessary and for which there is a Schedule-compliant notice.

Parties’ Positions

15The respondent submits that the applicant failed to make himself reasonably available for Insurer Examinations (“IEs”) as required under s. 44(9)(2)(iii) of the Schedule, and that he should therefore be barred from proceeding with his claim for an NEB. The respondent submits that it provided sufficient notice and reasons for the s. 44 IEs, and that it required the examinations to determine the applicant’s ongoing entitlement to an NEB.

16The applicant submits that the requested IEs were not reasonably necessary, because it would be more cost efficient for the respondent to pay out the remaining balance of the NEB rather than fund the cost of the IEs. The applicant relies on a Disability Certificate (“OCF-3”) dated September 18, 2023, completed by his family doctor, which was obtained after his failure to attend the requested IEs, in support of his ongoing entitlement to an NEB. However, the OCF-3 does not explain the reason he did not attend the IEs.

17The applicant’s submissions focus on an argument that the respondent’s notice was deficient and did not provide sufficient medical or other reasons, and therefore, his non-attendance at the IEs is not a bar to his application for an NEB under s.55 of the Schedule.

18I find that the applicant has not provided a reasonable explanation for his non-attendance at the IEs scheduled for August 16, 2023 with Dr. Gilbert Yee, orthopaedic surgeon; for August 22, 2023 with Fabio Salerno, psychologist; and for September 13, 2023 with Robert Campos, occupational therapist. I find that the OCF-3s submitted by the applicant indicate that his accident-related injuries include both orthopaedic injuries and psychological impairments, therefore, the IEs arranged by the respondent were reasonably necessary to determine the applicant’s ongoing entitlement to an NEB. The respondent submits that it paid an NEB for nearly one year up to July 31, 2023, before it requested that the applicant attend any IEs to determine his ongoing entitlement to an NEB. Therefore, I find the IEs were reasonably necessary.

Is the notice of examination compliant with s. 44(5)(a)?

19I find that the respondent’s notice was compliant with s.44 of the Schedule.

20The respondent must prove that a notice of examination 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 it 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 16-003316/AABS 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.

21The applicant submits that the Notice of Examination (“NOE”) dated July 31, 2023 does not comply with s.44 because the respondent did not provide any medical reasons for the applicant to attend assessments with Dr. Gilbert Yee, Fabio Salerno, and Robert Campos. The applicant further submits that the respondent did not provide specific details about the applicant’s medical condition in its notice.

22The respondent submits that its NOE states that the Disability Certificate (“OCF-3”) dated July 5, 2022 provides an estimated duration of disability to be 9 to 12 weeks, it has not received the requested updated clinical notes and records (“CNRs”) and OHIP summary, and it requires s. 44 assessments to determine the applicant’s ongoing entitlement to an NEB.

23I find the respondent’s notice dated July 31, 2023 is compliant with the requirements of section 44 because it provides adequate reasons to support the need for the IEs and assist the applicant in determining whether he should attend. The notice dated July 31, 2023 includes references to the OCF-3 dated July 5, 2022, which only supports a disability for a maximum period of 12 weeks, and the lack of updated medical evidence in support of a complete inability to carry on a normal life, and an ongoing entitlement to an NEB. I am not persuaded by the applicant’s argument that the respondent did not provide sufficient medical information to describe the applicant’s medical condition, especially where the requested updated medical documentation was not provided.

24I find that given that the notice complies with section 44(5), the respondent can rely on the remedy available in section 55 of the Schedule to bar the applicant’s application for an NEB from proceeding before the Tribunal.

25The respondent submits that it is procedurally unfair for the application to proceed without the applicant having submitted to the IEs. At its most basic, procedural fairness requires a party have an opportunity to be heard and that it be able to respond to the position taken against it. I find that to allow the applicant to proceed with his application for an NEB without having attended the scheduled IEs for which a compliant notice was issued would be procedurally unfair to the respondent.

26For the reasons above, I find that the applicant is statute-barred from proceeding with his claim for an NEB.

Substantive issues

OCF-18 dated August 9, 2023 for chiropractic services

27I find that the applicant has not established on a balance of probabilities that he is entitled to chiropractic services in the OCF-18 dated August 9, 2023.

28To receive payment for a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.

29Sections 15(1)(g) and 16(3)(k) of the Schedule provide for medical and rehabilitation benefits that are reasonable and necessary which include transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant. Sections 15(2)(c) and 16(4)(f) provide that the insurer is not liable to pay medical and rehabilitation benefits for transportation expenses other than authorized expenses.

30The applicant seeks payment for an OCF-18 dated August 9, 2023, in the amount of $1,525.84 for chiropractic therapy, and massage therapy, submitted by Mackenzie Medical Rehabilitation Centre.

31The applicant relies on the OCF-18 dated August 9, 2023, prepared by Dr. Ryan Pagnanelli, chiropractor. The applicant submits generally that the disputed plan is reasonable and necessary to assist him with his ongoing injuries and limitations. The applicant further submits that the goals of the disputed plan are pain reduction, increase range of motion and strength and to return the applicant to his activities of daily living.

32The applicant makes no specific submissions to address whether the types of treatment proposed in the disputed plan are reasonable and necessary for his accident-related injuries of left humeral fracture, back strain, headaches, anxiety and depression.

33The respondent submits that the applicant failed to attend a properly scheduled IE with Dr. Yee on August 16, 2023 to address whether the disputed plan is reasonable and necessary.

34I find that the applicant has not proven on a balance of probabilities, that he is entitled to the August 9, 2023 treatment plan. I find that the applicant has not provided corroborating medical evidence in support of the disputed plan other than the OCF-18 itself. Therefore, the applicant has not met his onus to establish that the plan is reasonable and necessary for his accident-related injuries.

Section 38(8) of the Schedule

35In the alternative, the applicant argues that the respondent did not properly deny the disputed treatment plan for chiropractic services in accordance with s. 38(8) of the Schedule.

36Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

37If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8). See: Aviva General Insurance Company v. Catic, 2022 ONSC 6000.

38The Tribunal in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT), has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

Sufficiency of the Respondent’s Denial of Plan dated August 9, 2023 in the amount of $1,525.84

39The applicant argues that the plan dated August 9, 2023, for chiropractic services in the amount of $1,525.84 was improperly denied by the respondent. The respondent sent a letter to the applicant on August 25, 2023 denying the benefit, within 10 business days after receiving the plan, which was submitted on HCAI on August 14, 2023. The applicant argues that the respondent’s denial of this plan does not comply with s.38(8) of the Schedule because they do not provide sufficient medical and other reasons for the denial. The applicant also submits that on October 19, 2023 he provided updated medical records, as requested in the denial.

40The respondent stated in its denial letter dated August 25, 2023, that it has not received updated medical records which were requested on January 25, 2023, in support of the applicant’s disability as a result of his accident-related injuries, and the treatment plan indicates there has been no improvement with this type of treatment. The respondent further stated that the applicant refused to attend an IE with Dr. Yee on August 16, 2023, and it requires an assessment to determine whether ongoing chiropractic and massage treatment is reasonable and necessary.

41I find that the August 25, 2023 notice was a valid denial letter. The respondent indicated that it had not received any updated medical information to support the need for ongoing chiropractic and massage therapy, and the disputed plan indicates there has been only modest improvement despite approximately 300 therapy sessions. The respondent also requested that the applicant attend an IE to determine whether the proposed treatment is reasonable and necessary.

42In my view, this rationale meets the standard set out in 17-003774/AABS v. Aviva Canada Inc, 2018 CanLII 84051 ON LAT (“Aviva”). While not binding on me, I find the following reasoning in Aviva to be persuasive “…an insurer’s ‘medical and any other reasons should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decisions or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.”

43Here, the respondent requested updated medical records on January 25, 2023, and states that it has not received updated medical evidence of a medical condition that warrants continued chiropractic and massage therapy. The respondent’s request for further medical information in the denial letter was a valid denial of the plan. I disagree with the applicant that the respondent was required to provide a specific medical reason for its denial, especially where updated medical information in support of the disputed plan was not provided, as requested.

44In sum, I find that the August 25, 2023 notice was a valid denial letter. I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

45I find on a balance of probabilities that the applicant has not met his burden to establish that this plan is payable under section 38.

Interest

46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have found that no benefits are delayed or owing, no interest is payable.

Award

47The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

48The applicant submits that the respondent acted unreasonably in requesting IEs rather than continuing to pay an NEB to the applicant, which were unreasonably withheld and delayed.

49I find that the respondent did not unreasonably withhold or delay benefits, since the IEs were properly scheduled to determine the applicant’s ongoing entitlement to an NEB, and this does not rise to the level of conduct to support an award.

50I find that the respondent is not liable to pay an award.

ORDER

51For the reasons stated above, I find that:

i. The applicant is barred from proceeding with his claim for an NEB.

ii. The applicant is not entitled to the disputed treatment plan dated August 9, 2023.

iii. The respondent’s denial of the disputed plan was proper notice in accordance with s. 38(8) of the Schedule.

iv. The applicant is not entitled to interest or an award.

v. The application is dismissed.