Fridays With Rogers Partners

This morning, at our weekly firm meeting, Matthew Umbrio addressed the Ontario Licence Appeal Tribunal decision of J.A. v. Intact Insurance Company, 2020 ONLAT 19-005110/AABS.

The applicant was injured in an automobile accident on April 3, 2016 and sought benefits under the Statutory Accident Benefits Schedule (the “Schedule”). Intact denied the applicant’s claim for two treatment plans on the basis that his injuries fall within the $3,500 limit of the Minor Injury Guidelines (the “MIG”) and required him to attend section 44 insurer’s examinations (“IEs”).

The applicant disagreed with Intact’s decision and submitted an application to the LAT. In reply, the respondent, Intact, requested a preliminary issue hearing to determine whether the applicant was precluded from proceeding with the application because he had failed to attend the requested and scheduled section 44 IEs.

The main issue to be decided was whether the applicant was barred from proceeding with his claim for the disputed benefits as he failed to submit to an insurer’s examination under section 44 of the Schedule.

Section 44 provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer my require an insured person to be examined by a regulated health professional or someone who has expertise in vocational rehabilitation.

The applicant argued that section 44 does not permit an IE to determine the applicability of the MIG. He submitted that IEs are beyond the scope of the examinations permitted under the Schedule. The applicant indicated that section 44 states that an IE may be required to help determine if the insured is or continues to be entitled to a benefit, but the determination of whether an impairment falls within the MIG is not considered “a benefit”.

The Vice-Chair rejected these arguments, except that the MIG itself is not a benefit. The Vice-Chair noted, however, that the outcome of the decision did not turn on whether or not the MIG itself was a benefit, finding that the two treatment plans submitted by the applicant were the benefits in dispute.

The Vice-Chair adopted the conclusions drawn in a previous decision, 18-000813 v Co-operators, wherein the Vice-Chair held that if an insurer is not entitled to ask for an IE to address the applicability of the MIG, this would render section 38(10) meaningless.

Further, the Vice-Chair held that section 44 allows an insurer to request an insured be examined, but does not explicitly preclude an insurer from addressing the MIG in an IE. The intention of section 44(3), cited by the applicant, is to preclude an insurer from forcing an insured into an IE on the original block of approved treatment, or for an IE on any treatment that falls within the MIG.

Since the applicant argued that his injuries did not fall under the MIG, and thus disputed that the treatment plans should not exceed $3,500, section 44(3) did not apply to preclude the insurer’s request for an IE.

As a result, the applicant was barred from proceeding with the claim.