Non-Attendance of IEs Precludes Insured from Applying to LAT - DW and Heartland Farm Mutual, 2018 CanLII 13145 ON LAT 17-001508

May 17, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

DW and Heartland Farm Mutual, 2018 CanLII 13145 ON LAT 17-001508

Date of Decision: January 30, 2018
Heard Before: Rupinder Hans

MEDICAL BENEFITS: application to LAT denied on S. 55 violation; applicant must attend IEs in order to appeal the decision

DW was injuredin a car accident on February 16, 2016.  DW applied for medical benefits under the SABs but Heartland denied payment for three treatment plans related to occupational therapy services, a memory foam mattress and a reclining chair.  The denials were based upon DW’s refusal to attend scheduled IEs.  DW asserts that he refused to attend because Heartland failed to provide “the medical and any other reasons” for the examinations as required under the Schedule.

DW appeals LAT seeking approval of the medical benefits, interest on the outstanding benefits, a special award, and costs.  Heartland submits that under s. 55(1)2 of the Schedule, DW is precluded from applying to the Tribunal for resolution of this dispute because he failed to attend the scheduled IEs.

Issues:

1. Is DW entitled to receive a medical benefit in the amount of $5,910.16 for occupational therapy services in a treatment plan dated December 13, 2016, and denied by Heartland on December 21, 2016?
2. Is DW entitled to receive medical benefits, recommended for the following:
   1. $4,141.37 for occupational therapy services, as set forth in a treatment plan dated April 1, 2017, and denied by Heartland on April 18, 2017?
   2. $797.77 for assistive devices, as set forth in a treatment plan dated April 16, 2017, and denied by Heartland on April 25, 2017?
3. Is Heartland liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to DW?
4. Is DW entitled to interest on any overdue payment of benefits?
5. Is DW entitled to costs pursuant to Rule 19 of the Tribunal’s Rules of Practice and Procedures?

RESULT

1. Based upon a review of the evidence and submissions presented the Adjudicator found that s.55 of the Schedule precludes DW from applying to the Tribunal.  Accordingly, the application is denied in its entirety.

THE LAW

Under s. 38(8) of the Schedule, if an insurer decides to refuse to pay for medical goods and services recommended in a treatment plan, it must send the insured person a notice explaining “the medical and all other reasons” for the refusal.  Section 38(10) provides that the insurer may notify the person that it requires the person to attend an IE under s. 44.  Section 44(5)(a) of the Schedule provides that when requiring that an insured person attend an assessment, an insurer give the insured person a notice setting out “the medical and any other reasons for the examination.”  DW states that Heartland failed to provide a medical reason for its denial of all three treatment plans.

Section 44(1) provides that an insurer, for the purposes of determining whether an insured person is or continues to be entitled to a benefit, may require an insured person to be examined by one or more regulated health professionals chosen by the insurer, but not more often than is reasonably necessary. Finally, s. 55(1)(2) provides that an insured person shall not commence a proceeding unless the insured person has complied with s. 44 if the insurer provided the insured person with notice in accordance with the Regulation that it required an examination under that section.

This case, therefore, turns on whether Heartland’s notices issued under s. 38 refusing to pay for the treatment claimed in the treatment plans, and its notices to attend s. 44 IEs, were in compliance with those sections.  The Adjudicator found that Heartland provided valid medical reasons when requesting the IEs, and that the failure of DW to attend precludes DW from applying to the Tribunal for resolution.

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.