Category: IE Non-Attendance

Noble v. Economical Insurance Company (2024 ONSC 6985)

The claimant appealed the Tribunal’s decision that she was not entitled to dispute benefits because she did not attend a psychiatric IE. Prior to this appeal, the claimant attended the IE and commenced a new LAT application. Nevertheless, the claimant continued with the appeal arguing that the LAT erred in barring the dispute, and in failing to provide procedural fairness. The Court dismissed the appeal. The Court held that the LAT did not make any legal error in barring the dispute, and that any arguments relating to factual errors were not proper for the Court to consider on appeal. The Court also found there was no lack of procedural fairness. The claimant’s arguments that limitations defence might now apply to the treatment plans in dispute was an indirect challenge to the claims being made rather than the Tribunal hearing.

Joaquim v. Intact Insurance Company (2023 ONSC 5120)

The claimant appealed the Tribunal’s decision that she was failed to attend an IE in relation to a claimed prescription expense. The claimant argued that the SABS does not permit an IE in relation to prescriptions. The Divisional Court granted the appeal, holding that only items required to be submitted on a treatment plan could be referred to IE. Items permitted to be submitted by way of OCF-6 could not be assessed at an IE. The Court also held that the $250 threshold referred to in section 38(2) did not apply to prescription. Rather, it only applied to “goods with a cost of $250 or less per item.” The Court wrote that the adjudicator ought to have followed the FSCO decision in Ward v. State Farm, which was persuasive authority for the claimant’s position.

L.D. v. Gore Mutual Insurance Company (18-011978)

The claimant sought entitlement to IRBs and a special award relating to a three year prior where she did not attend IEs. The Tribunal dismissed the claim, holding that the insurer had given proper IE notices, and that the claimant did not have a reasonable explanation for failing to attend the IEs. The claimant raised multiple arguments regarding the IE notices and the IE assessors. The adjudicator rejected all arguments. Adjudicator Neilson found that the notices contained sufficient medical and other reasons, as there was specificity to the claimant’s conditions and treatments. The notices properly referred to the benefit being assessed. The number and type of assessments was not excessive, given that the claimant was alleging physical, psychological, and neuropsychological injuries. Further, many of the assessors withdrew from conducting IEs due to aggressive communications from claimant’s counsel, leading to the insurer needing to retain further assessors and make additional IE requests. The scope of the insurer’s requests were similar to the assessments proposed and completed by the claimant’s section 25 assessors. The insurer’s use of assessment centres was not unreasonable, and is permitted by the Insurance Act. There was no violation of the Human Rights Code in the nature or format of the assessments, and the claimant failed to advise on any further accommodations she required (if any). Because the claimant did not have a reasonable excuse for failing to attend IEs, there was no unreasonable delay in the payment of IRBs, and no special award was given. Additionally, Adjudicator Neilson found that the claimant’s arguments were not proven. The insurer was not engaged in criminal harassment in using an investigator to conduct surveillance. The allegations that the insurer’s OT injured the claimant were not proven, and there was no evidence that the OT was made aware of any restrictions the claimant had. The claimant failed to prove that the insurer was selective in its review of the evidence. Furthermore, to the extent that the claimant believed that the assessors were not aware of her medical conditions, the SABS required the claimant to advise of any relevant information. Multiple procedural issues were considered by the adjudicator. The requests for contempt orders against IE facility directors were dismissed, and certain summons were not properly served. The claimant’s attempt to use summons to obtain production of records from assessors and assessment facilities was improper; the claimant was obliged to make the production requests through the insurer’s counsel, and to seek a Case Conference Order if disputes arose about the scope of production and relevance.

Kahissay v. Intact Insurance (2023 ONSC 3650)

Two claimants sought judicial review of the Tribunal Orders staying their applications while ordering the claimants to attend IEs prior to hearings on catastrophic impairment disputes. The Court held that the judicial review was premature and should not be heard. The cases did not raise exceptional circumstances, absent which the Court would not consider review or appeal of interlocutory matters.

Lengyel v. The Licence Appeal Tribunal (2023 ONSC 1623)

The claimant appealed and sought judicial review of the Tribunal’s decision to dismiss her application due to non-attendance at an IE. The Court dismissed the appeal and judicial review, holding that the Tribunal properly considered the SABS and the materials before it, and the result was a reasonable outcome available to the Tribunal under the SABS. The claimant failed to prove that she was not afforded procedural fairness in the hearing.

Kokulanthan v. TD General Insurance Company (20-011886)

The insurer raised a preliminary issue, arguing that the claimant’s entitlement to medical benefits and IRBs was barred for non-attendance at s. 44 examinations. Adjudicator Tavlin Kaur found that the insurer’s notices of examination in relation to IRBs did not comply with the SABS as they did not refer at all to the claimant’s medical conditions or the SABS provisions on which the insurer relied. The claimant was permitted to continue to a hearing for her IRB claim. Adjudicator Kaur found that the insurer’s notice with respect to medical benefits was satisfactory as it referenced the MIG, medical and rehabilitation benefits, and the claimant’s medical condition. The claimant’s claims relating to medical and rehabilitation benefits were barred from proceeding to a hearing. Adjudicator Kaur declined to exercise her discretion to allow the claimant to continue with these issues as she had not provided reasons for her non-attendance at the insurer examinations, nor had she made any written submissions at the preliminary issue hearing.

Stoppard v. Economical Insurance, (21-006374/AABS-PI)

The claimant was involved in an accident. She incurred transportation expenses in relation to her hip replacement surgery, and submitted these expenses to her insurer. The insurer denied payment of the transportation expenses as the records did not support that the surgery was required as a result of the accident. The claimant submitted an additional report from her doctor, and the insurer provided notice that the claimant was to attend an IE. The applicant refused to attend, claiming that the insurer had no right to request an examination under s. 44 as a treatment plan was not required for mileage expenses. Adjudicator Kaur held that the insurer has the right to request an IE in respect of transportation services, as they are medical benefits under s. 15(1)(g) of the SABS, and that the insurer may require the claimant to be examined to determine her entitlement to the medical benefit of transportation expenses. However, the insurer’s notice of examination was found to be defective, as it failed to mention the “medical and any other reasons” which formed the basis for the insurer’s decision.

Zhang v. Aviva Insurance Company (21-004454/AABS)

The claimant was denied benefits for non-compliance with s. 44 of the SABS after failing to attend psychological and physical insurer’s examinations . The claimant appealed to the LAT and was found statute-barred based on the two-year limitation period and non-compliance with s. 44. The limitation period was paused under O.Reg 73/20 due to COVID-19. The Tribunal added 183 days in addition to the two-year limitation period in their calculation; however, the claimant still fell outside the prescribed limits period. The limitation period was deemed to be a hard limit and the Tribunal refused to exercise their s.7 discretion to extend it as the claimant did not request the extension. The insurer was diligent in rescheduling the IE appointments twice and provided notice of the appointment and notice that they were missed. The insurer must prove to the Tribunal that the notice of examination complies with the SABS. It was held that the notice of examination was compliant. Tribunal refused to exercise its s. 7 discretion because the claimant did not provide a reasonable explanation for non-attendance at the IEs.

Smith v. Intact Insurance, (21-005342/AABS – PI)

The claimant submitted an application for determination of catastrophic impairment. The insurer scheduled two IEs (psychological and occupational therapy), which the claimant attended. However, Dr. Kiss (psychologist) passed away before he could complete his report, and the insurer determined that the claimant had not meaningfully participated in the situational portion of the OT IE. The insurer issued a second set of notices of examination, which the claimant refused to attend. Vice Chair Logan held that the claimant was non-compliant with s. 44 with respect to the subsequent OT IE situational assessment and stayed the claimant’s application until he complied with the notice of examination. As the claimant was seeking a CAT determination under Criterion 8, Vice Chair Logan held that there was a reasonable nexus between the situational assessment and the claimed impairment, and the insurer would be prejudiced if the situational assessment was not completed. Vice Chair logan held that a second in-person psychology IE was not reasonably necessary, and that a paper review of Dr. Kiss’ assessment and file material would be sufficient. The claimant had already attended one psychology IE, and would be significantly prejudiced if he was required to undertake a new in-person IE, more than 2 years after the initial IE.

Berardinelli v. Aviva Insurance Company, (21-007728/AABS)

The insurer requested that the claimant attend insurer examinations (IE) to assess her claims for various benefits. The claimant only attended one IE, and the insurer sought to bar the claimant’s application for attendant care, non-earner benefits, and treatment plans for her failure to attend IEs. The insurer sent 4 notices of examination to assess the claimant’s entitlement to NEBs, 6 notices of examination to assess the claimant’s application for attendant care, and one notice of examination to assess the claimant’s OCF-3. Adjudicator Kaur held that all of the notices of examination were defective, and the claimant’s application was allowed to proceed. All of the insurer’s notices were found to be vague, as they did not refer to the claimant’s medical condition. In all of the notices of examination, the insurer failed to specifically identify and state what injuries or impairments they believed were not caused by the accident.

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