Applicant Fails to Attend IE – Application to LAT Barred - ZM and Aviva Insurance Company, 2018 CanLII 13184 ON LAT 17-002894

May 28, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Applicant Fails to Attend IE – Application to LAT Barred - ZM and Aviva Insurance Company, 2018 CanLII 13184 ON LAT 17-002894

Date of Decision: February 9, 2018
Heard Before: Adjudicator Brian Norris

WAS PROPER NOTICE GIVEN FOR EXAMINATION: Propper notice was given pursuant to Section 38 and Section 55 of the SABs; applicant's application barred

ZM was injured in a car accident on June 12, 2015 and sought benefits from Aviva pursuant to the SABs. Aviva characterized ZM’s injuries as falling within the MIG and refused to pay for certain medical benefits and costs of assessments because ZM had reached the MIG funding limit of $3,500.00. ZM has applied to the LAT for resolution of this dispute.

ISSUES:

1. Is ZM barred from commencing a proceeding because ZM failed to comply with section 44 of the Schedule by not attending an orthopaedic insurer’s examination and an occupational therapy insurer’s examination?
2. Do ZM’s injuries fall within the MIG?
3. Is ZM entitled to receive a medical benefit in the amount of $300.00 for chiropractic treatments recommended a treatment and assessment plan dated November 23, 2015?
4. Is ZM entitled to payments for the cost of examinations in a treatment plan dated September 17, 2015?
5. Is ZM entitled to payment for the cost of examinations in the amount of $1,242.02 for an assessment of living space recommended in a treatment plan dated December 22, 2015?
6. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to ZM?
7. Is ZM entitled to interest on any overdue payment of benefits?

RESULT

1. ZM did not comply with section 44 of the Schedule because ZM did not attend the properly scheduled insurer’s examinations. As a result, ZM is barred from commencing this application.
2. Neither party, during the proceeding, acted in a manner which would warrant costs.

OVERVIEW:

ZM was involved in a collision in a parking lot on June 12, 2015. ZM complained of back pain following the collision and was treated under the MIG. A few months later, ZM sought approval for chiropractic treatment and two costs of assessments and now seeks payment for all three benefits claimed. 

PRELIMINARY ISSUE

ZM made claims for medical benefits and the costs of examinations which would require funding outside of the MIG limit. Aviva wished to assess these claims and requested ZM attend two insurer’s examinations pursuant to section 44: an orthopaedic examination and an occupational therapy examination. Aviva submits that ZM did not attend the scheduled section 44 examinations and has raised a preliminary issue under section 55 of the Schedule. Aviva submits that, pursuant to section 55(1)2, ZM cannot proceed with this application until the two section 44 insurer’s examinations are completed.

ZM submits that the notices of the two section 44 insurer’s examinations are improper. ZM submits that Aviva must pay the benefits claimed because it did not respond to the treatment plan in accordance with the Schedule. ZM does not dispute receipt of the notices. ZM submits that the notice provided is not proper because it did not include the information required in the Schedule.

The Adjudicator reviewed the requirements of a Section 44 notice and the notices themselves and determined that the notices were proper as they addressed each of the eight section 44 factors and the two section 38 factors.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.