Category: IE Non-Attendance

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.

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.

Ruchlemer v. TD Insurance Meloche Monnex (20-005381)

The insurer raised a preliminary issue and argued that the claimant was barred from applying to the LAT for failure under s. 55 and s.44 of the SABS to cooperate with an IE assessor. Secondly, the insurer argued that the claimant did not suffer a complete inability to carry on a normal life. The claimant argued that she “became ill or unwell” during the assessment and was unable to participate, and that she did suffer a complete inability to carry on a normal life. The insurer had arranged for an occupational therapy IE to address NEBs. When the OT arrived at the claimant’s resident, she was informed that the claimant was not home. After several unsuccessful attempts to ascertain where the claimant was, the OT was able to speak to the claimant by cell phone and was informed that the claimant and her husband “were driving back from Wasaga Beach and stuck in traffic”. The assessment proceeded, although later than scheduled and was modified to a joint assessment with the claimant and her husband, rather than the back-to-back assessments originally scheduled. After around two hours, the claimant stated she was feeling unwell and requested that the balance of the assessment be rescheduled. The insurer agreed to reschedule the assessment and it was continued on June 27, 2018. The assessor noted that “Ms. Ruchlemer reported she felt unwell and was experiencing severe back pack pain and headaches, and again requested the assessment be rescheduled.” The assessor also reported that the claimant refused to participate in the functional portion of the assessment. Vice-Chair Flude noted a previous insurer’s report from two months prior, in which the assessor noted that the claimant performed tasks, albeit with both pain and difficulty. Based on the evidence, Vice-Chair Flude opined that it was reasonable for the claimant to refuse a physical exam that may cause her pain, and that a refusal to participate in those circumstances did not amount to a refusal to cooperate entirely with the assessment. The preliminary issue was dismissed. In terms of NEBs, Vice-Chair Flude opined that the claimant did not meet the complete inability test as she still traveled out of town to visit relatives, traveled internationally, went to restaurants and socialized, and the extent that she reported a decline in these activities would not amount to a complete inability to carry on a normal life as defined in the SABS.

[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.