No-Show at Insurer Examination Bars LAT Claim: O.H.A and Aviva General Insurance Company by Mallory Allan

May 17, 2019

In O.H.A. and Aviva General Insurance Company, the issue of whether a no-show at an insurer examination will bar the continuation of an Applicant’s claim was decided. The Applicant was involved in an automobile accident, and his insurer, Aviva, had paid for some of his benefits under the Minor Injury Guideline (“MIG”) but denied others and gave notice of their request for in-person examinations. The Applicant then filed an application with the Ontario Licence Appeal Tribunal (“LAT”) that included multiple issues: the insurer’s classification of his injuries as within the MIG limits, a claim for a special award, and claims for eight medical benefits for either treatment or assessments. At the case conference, Aviva raised the preliminary issue of the Applicant’s failure to attend their requested in-person insurer examination (“IE”), as provided by section 44 of the Statutory Accident Benefits Schedule (“SABS”). Ajudicator Eleanor White heard this preliminary issue at the LAT on November 26, 2018.

Aviva took the position that due to the Applicant’s repeated non-compliance with their requests for IEs, the Applicant was restricted from advancing his claim at the LAT.

Section 44(1) states:

Examination required by insurer

44. (1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.  O. Reg. 34/10, s. 44 (1).

The Applicant took the position that because the insurer had considered his sustained injuries to be treatable under the limitations of the MIG (primarily soft tissue, whiplash related, or sprain/strain in nature) the insurer could not request a s. 44 examination, pursuant to s. 44(3) of the SABS. Section 44(3)(a) states that the examination rights provided to the insurer under s. 44(1) will not apply to a benefit payable in accordance with the Minor Injury Guidelines. Accordingly, the Applicant did not comply with multiple requests for s.44 examinations.

Aviva responded that although the Applicant was held to be within the MIG, the requested examinations would provide the opportunity to determine if indeed the applicant should be taken out of the MIG limits and thus, have access to further treatment and assessments. Aviva emphasized that without the opportunity to evaluate the situation through an IE, the Applicant may remain within the MIG – and this is precisely what was at issue in the Applicant’s claim.

Adjudicator White held in favour of Aviva’s argument. S. 38(10) of the SABS specifies that in the event the insurer has not agreed to pay for elements or all of a treatment and assessment plan, or believes that the MIG applies to the insured person’s impairment, the insured person may be notified of the insurer’s requirement of his or her attendance at a s. 44 IE. According to White, s. 38(10) “clearly allows the insurer to require the applicant to attend a s. 44 IE, whilst he or she is still considered to be covered within the MIG”.

Adjudicator White’s decision provides two key takeaways. Firstly, an Applicant’s no-shows at IEs will bar the continuation of their claim at the LAT. Secondly, the SABS must be interpreted as a whole. In this case, the Applicant tried to rely on s. 44(3) to justify his non-compliance with s.44(1). As we can see from Adjudicator White’s decision – the entire purpose of s.44 must be taken into account, along with other provisions within the SABS. Adjudicator White concludes that s.44 clearly states that the insurer alone has the authority to determine if the presence of the applicant is required at an examination; this is not within the purview of the applicant. The Applicant’s claim was barred, with additional consideration of the fact that the significant delays in proceedings as a result of the Applicant’s actions would prejudice the insurer if an IE were to be conducted at the present, rendering any conclusion “inaccurate and of little use to either party”. The application was dismissed, and the Tribunal file closed pursuant to s. 55 of the SABS.

Mallory Allan is a summer student at ZTGH. If you have a question about this decision or a similar file, please contact Eric Grossman or Mallory

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