Does failure to attend an insurer’s examination forbid an accident victim to apply for accident benefits?

The decision of the Licence Appeal Tribunal (LAT) in the case called S.L. v Certas Home and Auto Insurance Company answers the question on whether or not the failure to attend an insurer’s examination (IE) forbid an accident victim to apply for accident benefits.

The applicant in this case, S. L., was injured in an accident on July 17, 2011. On September 20, 2011, the applicant submitted three treatments plans to her insurer Certas Home and Auto Insurance Company. On the same date, the applicant also filed for accident benefits with the insurance company.

Between September 29, 2011 to November 29, 2011, Certas notified the applicant to attend four scheduled insurer’s examinations (IEs). The applicant refused to attend the scheduled IEs, arguing that the Cantonese interpreter provided by the insurance company was not accredited by the Ministry of the Attorney General. As a result of the applicant’s failure to attend the scheduled IEs, the insurance company did not pay the applicant's accident benefits.

Due to the insurance company’s failure to pay her accident benefits, the applicant applied for arbitration before the Financial Services Commission of Ontario (FSCO) on November 20, 2013. The applicant later on withdrew her arbitration application. On November 19, 2015, FSCO ordered that the applicant be permitted to withdraw her arbitration application.

On December 14, 2015, the applicant submitted a new treatment plan worth $9,236.48 to Certas - an amount exceeding the Minor Injury Guideline (MIG) limit which was $3,500. For this 2015 treatment plan, the insurance company did not require the applicant to attend an IE. On January 16, 2016 the insurance company denied the applicant's 2015 treatment plan.

As a result of the insurance company’s denial, the applicant asked the assistance of the LAT, arguing that that she is entitled to have her dispute be heard before the LAT as the 2015 treatment plan "creates a new and independent obligation on the Insurance Company". The applicant added that she is entitled to have her dispute be heard before the LAT since the insurance company has not requested that she attend an IE for the 2015 treatment plan.

The insurance company, for its part, asked the LAT to prohibit the applicant from claiming accident benefits as she failed to attend the insurer's examinations.

The Tribunal on September 13, 2016 ruled that section 55, paragraph 1.2 of the Statutory Accident Benefits Schedule (SABS) requires that these two elements must be present in order to prohibit an applicant from applying for accident benefits:

First Element:

The insurance company must prove that it provided the applicant a notice of an examination in accordance with SABS.

Second Element:

The applicant failed to attend the insurer’s examination.

The Tribunal ruled that the dispute regarding the interpreter’s qualification was "resolved when the Appellant withdrew her arbitration application to FSCO." The Tribunal added that no decision was made on the merits of the FSCO arbitration application. "Since receiving the December 14, 2015 treatment plan, it remains open to the Insurance Company to serve the appropriate notice for her to attend one or more IEs," the Tribunal added.

The Tribunal ordered that the applicant’s accident benefit claim against Certas proceed to hearing.