[L.D.] v. Gore Mutual Insurance Company (17-002762)

The claimant was involved in an accident on November 25, 2015 and sought attendant care benefits. The insurer denied ACBs and the claimant filed a LAT Application. The insurer filed a motion requesting that the claimant’s LAT Application be barred pursuant to s. 55 of the SABS for failure to attend three properly scheduled independent medical examinations to address ACBs. After the insurer filed the motion, the claimant was accepted as CAT and advised the LAT that she wanted to attend the IE in order to move the matter forward. In response, the insurer requested an Order staying the proceedings until the claimant attended the IE. Vice-Chair Flude noted that the claimant had in fact attended numerous other assessments addressing attendant care with both s. 25 and s. 44 providers. The claimant argued that the subject notice was not compliant with the SABS and did not include sufficient medical and other reasons. Vice-Chair Flude disagreed, noting that the letter made specific references to the claimant’s medical records noting an improvement in physical ability, as well as the fact that the disputed Form 1 was over three times the recommended amount, which satisfied the insurer’s obligations. As such, the claimant’s failure to attend the April 18, 2017 IE triggered s. 55. Vice-Chair Flude did not consider the other two failures to attend, as both had been cancelled by the insurer for various reasons. Vice-Chair Flude opined that while the claimant’s failure to attend the IE may be sufficient to strike the claim, she had advanced her claim vigorously since then and had been accepted as CAT. The claimant also expressed a willingness to attend the IE in order to advance the claim. As such, Vice-Chair Flude opted not to issue an Order staying the Application until the claimant attended, but rather issued an Order for the parties to agree on a mutual date for IE attendance within 30 days, and for the IE to take place within 90 days. Should the parties not be able to agree to such dates, they were to submit three proposed each dates to Vice-Chair Flude, who would then decide the date. Should the claimant not attend the IE this time, the insurer would be allowed to request an Order staying the Application.