Deficient Notices of Examinations in an Accident Benefits Claim: Berardinelli v. Aviva Insurance Company, 2023 CanLII 138 (ON LAT)

Written By: Brandon Pedersen and Sonam Sapra, Student-at-Law

This decision stems from a motor vehicle collision that occurred on July 1, 2019 in which the Applicant was injured. As a result of the collision, the Applicant sought accident benefits from the Respondent under the Statutory Accident Benefits Schedule (“the Schedule”).

The Issue

A dispute between the Applicant and the Respondent arose over the Applicant’s entitlement to certain benefits. The Applicant filed an application with the LAT (“the Tribunal”) for a determination of the issues. The Respondent, however, argued that the Applicant was barred from proceeding with her application. The Respondent based their argument on the fact that the Applicant failed to attend multiple Insurer’s Examinations (“IEs”) in contravention of s. 44(2) 2.iii of the Schedule, and that this failure prejudiced the Respondent’s ability to assess the Applicant’s medical condition in a timely fashion.

The issue for the Tribunal to determine was whether the Applicant was barred from proceeding with her application after she failed to attend multiple scheduled IEs.

The Decision

The Tribunal began its analysis by considering the relevant sections of the Schedule. First, the Tribunal looked to s. 44(1) of the Schedule, which reads as follows:

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.

The Tribunal noted that s.44(5) of the Schedule sets out the notice requirements for an IE. Section 44(5) stipulates that notice is only proper if the insurer includes a reason, including any medical reason, as to why the examination is necessary. As for the rules for an IE, s. 44(9)(2)(iii) outlines that if attendance of the insured person is required, then they must attend and submit to all reasonable examinations requested.

Here, the Tribunal reasoned that the Applicant had a duty to participate in each IE that was reasonable and necessary for which there was a Schedule-compliant notice. If the Applicant had failed to do so without a reasonable explanation provided for the non-compliance, then she would be barred from bringing her application.

The Tribunal analyzed whether the notices of examination provided by the Respondent were in compliance with s.44(5) of the Schedule. In total, the Tribunal considered twelve notices and found that each notice failed to clearly outline the reason for the examination. While each notice made reference to a medical reason, each reason provided was too vague. The Tribunal noted the following with respect to the twelve notices:

• Notice of Examination dated November 6, 2019 re Non-Earner Benefit: The notice provided the following reason for the examination: “the impairments identified do not appear clearly or directly caused by the accident.” The Tribunal found that it is unclear what impairments were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated November 21, 2019 re the Non-Earner Benefit: The notice provided the following reason for the examination: “the impairments identified do not appear clearly or directly caused by the accident.” The Tribunal found that it is unclear what impairments were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated December 11, 2019 re Form 1 (Assessment of Attendant Care Needs): The notice provided the following reason for the examination: “the amount or type of care recommended does not appear to be in line with the documented injuries or impairments.” The Tribunal found that it is unclear what injuries and impairments were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated June 23, 2020 re Form 1 (Assessment of Attendant Care Needs): The notice provided the following reason for the examination: “the amount or type of care recommended does not appear to be in line with the documented injuries or impairments.” The Tribunal found that it is unclear what injuries and impairments were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated July 6, 2020 re Non-Earner BenefitThe notice provided the following reason for the examination: “the amount or type of care recommended does not appear to be in line with the documented injuries or impairments.” The Tribunal found that it is unclear what injuries or impairments were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated October 5, 2022 re OCF-3 re Non-Earner Benefit: The notice provided the following reason for the examination: “the impairments identified do not appear clearly or directly caused by the accident.” The Tribunal found that it is unclear what impairments were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated October 5, 2022 re Form 1 (Assessment of Attendant Care Needs) dated August 29, 2019: The notice provided the following reason for the examination: “the amount or type of care recommended does not appear to be in line with the documented injuries or impairments. The Tribunal found that it is unclear what injuries and impairments were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated October 5, 2022 re OCF-18 and Form 1 (Assessment of Attendant Care Needs) dated July 30, 2019: The notice provided the following reason for the examination: “there appear to be pre-existing or concurrent medical conditions exist that might affect the patient’s care, treatment, and prognosis.” The Tribunal found that it is unclear what pre-existing or concurrent medical conditions were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated October 24, 2022 re OCF-18 and Form 1 (Assessment of Attendant Care Needs) dated July 30, 2019: The notice provided the following reason for the examination: “there appear to be pre-existing or concurrent medical conditions exist that might affect the patient’s care, treatment, and prognosis.” The Tribunal found that it is unclear what the pre-existing or concurrent medical conditions were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated October 24, 2022 re OCF-3 dated July 30, 2019: The notice provided the following reason for the examination: “the impairments identified do not appear clearly or directly caused by the accident.” The Tribunal found that it is unclear what impairments were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.
• Notice of Examination dated October 27, 2022 re Form 1 (Assessment of Attendant Care Needs) dated August 28, 2019: The notice provided the following reason for the examination: “the amount of type of care recommended does not appear to be in line with the documented injuries or impairments.” The Tribunal found that it is unclear what impairments were being referred to by the notice. Therefore, the Tribunal concluded that the reason provided was too vague.

Ultimately, the Tribunal found that all twelve notices were defective and not Schedule-complaint. As a result, the Applicant was not required to attend the IEs and she was not barred from bringing her application.