Insured Fails to Attend IE As He Is In Residential Addiction Treatment - Arbitrator Accepts Reason

February 06, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

AABS v Motor Vehicle Accident Claims Fund, 16-000058

Date:    August 25, 2016
Heard Before: Adjudicator Lori Marzinotto

AMENDED REASONS FOR DECISION AND ORDER

Background

AABS was injured in a car accident on August 28, 2012.  AABS was unemployed at the time of the Accident and sought non-earner benefits pursuant to the Schedule.  In October 2013, MVACF sent correspondence addressed to AABS at his parents’ home, requesting that he attend an insurer’s examination on October 29, 2013, however AABS did not attend the insurer’s examination and MVACF terminated AABS’s non-earner benefit. AABS submits that he has a reasonable explanation for his non-attendance and therefore MVACF should pay all of the amounts it withheld during the period that he did not attend. 

Facts / Evidence

At the time of the Accident, AABS had been living with his parents.  AABS had been receiving correspondence from ClaimsPro relating to the Accident at this address. Sometime after the Accident, AABS moved out of his parents’ home but could not recall the date. After leaving his parents’ home, AABS sought addiction treatment, and was a residential patient at Brentwood for three months.  After leaving Brentwood in June 2013, he moved to two different dry-house facilities to continue treatment.  During this time, he received mail at both his parents’ address and at his wife’s home. He does not recall whether he informed anyone of this address, but did use his wife’s address when filling out forms. AABS testified that he believes he was living with his wife during October 2013.  AABS testified that if he received mail at his parent’s address they would give it to him.

There is no dispute that the letter indicating that an insurer’s examination was scheduled on October 29, 2013 exists.  The dispute is whether AABS received it.  MVACF did not provide any evidence of how the letter was sent to AABS.  AABS’s evidence is that he never received the letter. AABS testified that he first learned of the October 29, 2013 insurer’s examination in February, 2014 from his counsel.  AABS testified that once he was informed that he missed the insurer’s examination, he asked his counsel that one be re-scheduled.  The insurer’s examination was re-scheduled and AABS attended.  Counsel for AABS submitted that the MVACF waited two months to reschedule the insurer’s examination. 

The Arbitrator reviewed the facts and the law. He noted that pursuant to s. 37(7) of the Schedule, if an insured fails to attend an insurer’s examination, the insurer may refuse to pay the benefit during the period of non-compliance. If the insured subsequently complies, pursuant to s. 37(8)(ii), the insurer shall pay all amounts that were withheld during the period of non-compliance if the insured provides a reasonable explanation for his non-attendance.

The Tribunal finds that AABS has provided a reasonable explanation for his non-compliance.  The Tribunal found AABS’s evidence credible.  AABS provided a reasonable explanation for the original non-compliance.  There was no evidence of delay on behalf of AABS after he learned of the missed insurer’s examination.  There was however, a significant period of delay by the insurer between the date of the original insurer’s examination of October 29, 2013, the notice of non-compliance in February 2014, and the rescheduled insurer’s examination in April 2014, without explanation.

After considering the evidence the Tribunal orders that AABS is entitled to be paid non-earner benefits in the amount of $185.00 per week from October 29, 2013 to April 1, 2014.

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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.