This motion was brought by the claimant for a declaration that she was not barred from proceeding to a hearing due to non-attendance at a psychological IE. The claimant argued that the Notice of Examination for the IE did not satisfy the requirements in s. 44, and that s. 55(1) was not triggered because the IE had been requested after she had filed her LAT application. Adjudicator Mazerolle found that the Notice of Examination satisfied the requirements under s. 44 as it provided sufficient medical and other reasons for the assessment. Although it was concerning that the insurer had served the Notice of Examination in September 2021, despite the disputed treatment plan having been submitted on March 23, 2021, Adjudicator Mazerolle found that the insurer had requested medical records from the claimant on March 29, 2021, one week after the disputed treatment plan had been submitted, and had not received these records until August 21, 2021. He reasoned that the insurer had waited to receive these records before setting up the IE and had requested the IE with the intention of properly adjusting the claim. The adjudicator rejected the claimant’s argument that s. 55(1) would only be triggered if the IE was requested before a LAT application was filed, as this would impair the insurer’s ability to seek assessments under s. 44 and because it went against the principle that an insurer’s duty to adjust a claim in good faith did not end when litigation began. However, Adjudicator Mazerolle exercised the discretion granted under s. 55(2) and permitted the application to proceed because there remained ample time for the IE to be completed before the hearing.
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