Tipping v. Coseco Insurance Company (2021 ONSC 5295)

The claimant sought judicial review of the Tribunal’s decision that he failed to attend properly requested IEs and that he could not proceed with his dispute relating to a catastrophic impairment. The Court dismissed the judicial review, holding that the claimant ought to have pursued a statutory right of appeal under the Insurance Act, and holding that there were no exceptional circumstances warranting the Court’s interference by way of judicial review. The Court noted that the claimant’s allegations of bias, lack of procedural fairness, and lack of natural justice were all questions of law, which could be addressed on a statutory appeal (though the Court went on to say that these claims seemed to have little meri, noting that strong disagreement with a decision was not sufficient to justify a finding of reasonable apprehension of bias). Finally, the Court noted that the LAT’s decision might not be a final decision, as the claimant could attend the IEs and then proceed with his LAT dispute.

Spiegel v. Intact Insurance Company (20-000279 & 20-000408)

Intact requested a preliminary issue hearing as the claimant failed to attend insurer examinations. Intact requested that two issues for medical benefits be barred from dispute pursuant to section 55. The claimant was involved in two accidents which were joined into a single matter for the purpose of the preliminary issues hearing. The two disputed treatment plans were for medical cannabis, which the claimant said was required for low back pain, and a second treatment plan for a stress therapy reduction system and shiatsu massage chair, which the claimant said would reduce the need for pain medication and increase stamina, motivation and social and recreational activities. The claimant stated that he did not attend the assessments because: the IE assessors did not have an expertise in cannabis therapy; the claimant was only able to attend an assessment on a Saturday or Sunday at 2:00 PM; the claimant demanded to record his assessment; the claimant demanded to bring his own chaperone into the assessment with him, and the claimant demanded that he would be able to conduct his own section 25 assessment in response to the section 44 assessment. The claimant requested that an Order enforcing the conditions of his attendance at the IEs. Vice-Chair Johal ruled in Intact’s favour, noting that specific medical and other reasons for the denials and IEs were given in accordance with M.B. v. Aviva, and that Intact contacted the claimant and offered alternative accommodations and attempted to reschedule the assessments. Vice-Chair Johal noted that, as in J.C. v. Aviva, as long as there was sufficient medical and other reasons and the IE was reasonable and necessary, the claimant would be required to attend. The assessments proposed by Intact were considered reasonable and necessary and the claimant was barred from disputing the medical benefits until he attended the IEs. Vice-Chair Johal further noted that it was not within the Tribunal’s power to Order the insurer to allow the claimant to video record his IEs.

Hamad v. Travelers Insurance (19-014581)

A preliminary issue hearing was held to determine whether the claimant was barred from proceeding with her claim for NEBs and medical benefits after failure to submit to an insurer’s examination under section 44 of the SABs. The claimant submitted an OCF3 supporting an entitlement to NEBs but containing no medical evidence. The insurer requested that the claimant attend physiatry and in-home OT assessments to determine her entitlement to benefits. The claimant failed to attend the assessments on numerous occasions. The insurer argued that where the OCF3 supported NEB entitlement but contained limited medical evidence, a request for the claimant to attend a section 44 examination was reasonable. The insurer further submitted that there would be no prejudice to the claimant through attendance at the examinations as she had only been examined once in the 3.5 years after the accident. Vice Chair Boyce agreed with the insurer and concluded that the claimant was statute barred under section 55 of the SABs from proceeding with her claim.

A.B. v. The Co-Operators Insurance Company (19-004401)

The claimant applied to the LAT seeking entitlement to benefits after being involved in an automobile accident in 2016. The insurer raised two preliminary issues: 1) Was the claimant statue-barred from proceeding with a claim for NEBs for failure to commence the application within the two year limitation period; and 2) Was the claimant entitled to medical benefits after non-compliance with s. 44 of the Schedule for failing to attend an IE assessment? Adjudicator Grant found that the claim was statute barred and the claimant was not entitled to dispute any of the 2017 treatment plans. He rejected the argument that the limitation period did not commence until IEs were received by the claimant, because there had been a denial upon submission of the treatment plans. Adjudicator Grant also found the that claimant was not entitled to NEBs due to non-compliance under s. 44. Adjudicator Grant was also asked to determine whether the claimant was entitled to 13 treatment plans, a special award and interest. In his decision, Adjudicator Grant highlighted that the onus is on the claimant to demonstrate that the disputed treatment plans are reasonable and necessary. In this case the claimant advanced medical evidence that was not consistent with the treatment being disputed. It was determined that the claimant failed to meet his burden, rendering the treatment plans not payable.

Hardy-MacDonald v. Wawanesa Mutual Insurance Company (20-005392)

The preliminary issue in this matter was whether the claimant was barred from commencing a proceeding because she failed to comply with Section 44 of the Schedule by not attending insurer’s examinations. Adjudicator McGee dismissed the application due to the claimant’s failure to attend the IEs. The claimant submitted that she was not required to attend the insurer’s examination because the requests were made improperly and in bad faith and were an abuse of process. Adjudicator McGee disagreed, stating that the insurer’s rationale followed the precedent set in M.B. v. Aviva Insurance Canada, using straightforward language capable of enabling an unsophisticated person to determine whether to accept or refuse the request, and outlining the information the insurer did not have about the claimant’s condition. Further, Adjudicator McGee stated that nothing in the Schedule requires an insurer to accept at face value the medical documentation an insured person provides in support of a claim. Section 44 establishes a broad right to request Insurer’s Examinations by a regulated health professional of the insurer’s choosing.

Strickland v. Economical Insurance (20-001811)

The claimant disputed entitlement to various medical benefits. The insurer argued that the dispute was barred due to the claimant’s IE non-attendance. Adjudicator Chakravarti held that the dispute could proceed because the IE notice was not in accordance with section 44. The denial of benefits was generic and did not explain why benefits outside the MIG were not being approved. The notice simply stated that the MIG applied, without reasons why the insurer believed the MIG applied. The IE notice contained the same deficient language, and made no mention of the injuries or medical reasons for the IE.

E.L. v. Wawanesa Mutual Insurance Company (19-003212)

The claimant sought reconsideration of the Tribunal’s decision that his IE non-attendance barred the LAT dispute. Adjudicator Makhamra dismissed the reconsideration, holding that the Tribunal properly considered whether the claimant was barred by section 55 from disputing the MIG and the disputed treatment plan. However, Adjudicator Makhamra noted that the decision did not bar the claimant from submitting treatment plans in the future and disputing entitlement to same if the insurer refused to approve the treatment plans, and subject to IE requests in relation to any future treatment plans.

Silvera v. Aviva General Insurance (20-000483)

The claimant sought entitlement to NEBs and medical benefits; the insurer required the claimant to attend s. 44 insurer’s examinations. The claimant did not attend the IEs and submitted an application to the LAT. The insurer requested a preliminary issue hearing and Adjudicator Farlam found that the claimant was barred from proceeding with her application because she failed to attend s. 44 IEs. The Schedule provides that the onus is on the claimant to put forward a reasonable explanation for non-attendance at an IE. In this case, the claimant failed to attend six s. 44 assessments. The claimant submitted that one was missed due to attending the death of a family member and that another was because the claimant was out of the country, but the claimant did not submit any evidence to establish either of these facts. Further, the claimant failed to offer any persuasive evidence in support of their submissions that the insurer was not prejudiced by the failure to attend the IEs. The Adjudicator accepted the insurer’s submission that it was prejudiced by the passage of time and it had now been deprived of the opportunity to have it’s physicians reasonably assess whether the claimant would meet the eligibility test for NEBs and also whether the disputed treatment plans were reasonable and necessary.

Wangden v. Economical Insurance (19-010637)

The claimant disputed entitlement to the MIG, NEBs, and various medical benefits. The claimant argued that they were entitled to payment of NEBs due to Economical’s failure to comply with the timeline under section 36(4). The insurer argued that the claimant was barred from litigating NEBs for failure to attend a scheduled IE to address the benefit. Adjudicator Mazerolle ruled that the claimant was not entitled to automatic payment of NEBs as the insurer had made a valid request under section 33 for a completed OCF-10 within 10 business days of receiving the OCF-1 and OCF-3, which extended the time to respond under section 36(4). In relation to the section 55 issue, the claimant argued that the insurer’s notice letter for the IE did not contain suitable “medical and other reasons” as set out in M.B. v Aviva. The insurer argued that the notice was the same as all other notices provided to the claimant over the course of the claim, yet there was only the one IE the claimant failed to attend. Adjudicator Mazerolle ruled in favour of the claimant, noting that the notice provided was insufficient as well as confusing to an “unsophisticated reader”. Adjudicator Mazerolle noted that even though the claimant did attend other assessments with similar notices, this did not affect the insurer’s responsibility to provide a proper notice. As such, the claimant was allowed to proceed with his claim for NEBs.

Harvey v. TD Insurance Meloche Monnex (19-008497)

The claimant applied to the LAT seeking entitlement to incurred ACBs, occupational therapy, and a special award. The insurer raised two preliminary issues: 1) Did the LAT have jurisdiction to adjudicate the ACB issue as the benefit had been suspended for non-compliance with s. 33 requests rather than denied; and 2) Was the claimant barred from pursuing entitlement to ACBs pursuant to s. 55 for failure to attend an IE assessment? Adjudicator Victor found that the LAT had jurisdiction over the ACB dispute and the claimant was not barred from pursuing entitlement to the benefit pursuant to s. 55 because the notice of assessment was deficient for failure to provide specific medical and other reasons. Adjudicator Victor found that the claimant was entitled to all the benefits in dispute and granted a special award in relation to the claim for ACBs. The special award was justified because payment of ACBs was stopped while catastrophic impairment IEs were scheduled, despite section 45(4) which required ongoing ACBs until the IEs were completed. The insurer also used the COVID-19 delays in scheduling the IEs to its advantage by not paying ACBs while IEs were rescheduled.