Bagherian v. Aviva Insurance Company (2022 ONSC 3103)

The claimant appealed the Tribunal’s decision dismissing his application due to repeated non-attendance at IEs. The Court dismissed the appeal, holding that the LAT had the legal authority to dismiss the application. The claimant’s failure to cooperate in obtaining IEs interfered with the insurer’s ability to participate in the process before the Tribunal, and caused delay in the timely determination of the matter before the Tribunal. The Tribunal was justified in concluding that the claimant’s behaviour amounted to abuse of process. The Court also rejected the claimant’s argument that the Tribunal did not have the power to require that he sign a consent as part of the IE process. The Court affirmed that the Tribunal does have such power as part of its power to require the claimant to cooperate in the IE process.

Samra v. Zenith Insurance Company (20-003287)

The claimant applied to the LAT disputing numerous treatment plans for therapy, assessments, and psychological treatments. The insurer raised a preliminary issue and argued that the claimant was barred from proceeding with the dispute under section 55 for failure to attend IEs to address IRBs. Vice-Chair McGee noted that the claimant had not in fact disputed IRBs at the time of the hearing, but rather the insurer was attempting to bar the claimant’s anticipated claim should IRBs be denied in the future. The insurer argued that the claimant had a “long history” of missing IE appointments, Vice-Chair McGee noted that the assessment in question was in fact terminated by the assessor themself, rather than the claimant, though the insurer argued that the termination was due to the claimant’s abusive behaviour and attempts to intimidate the assessor in question. Vice-Chair McGee noted that the IE assessor did publish a report noting the termination, but made no mention of the claimant being abusive, swearing or attempting to intimidate her. The only evidence provided at the hearing of swearing or abusive behaviour was in the form of an email sent by the adjuster to the claimant’s representative months after the assessment occurred. The email mentioned that the claimant was swearing, but made no mention of abusive behaviour. Vice Chair McGee did not find the insurer’s evidence persuasive, as the email was from a third-party who was not present during the assessment, and the IE assessor never alleged the supposed behaviour of the claimant in her own report. Vice-Chair McGee ruled that the claimant had made himself reasonably available for the assessment, which had been rescheduled numerous times due to COVID and did not bar the claimant from an IRB claim.

Fard v. Economical Insurance (19-010239)

The claimant applied to the insurer for IRBs and ACBs. The insurer paid the claimant an IRB from her initial eligibility until August 22, 2019. The insurer had arranged four IEs in July of 2019, which the claimant did not attend. The insurer rescheduled all four IEs to provide the claimant another chance to attend, but she failed to attend all four IEs yet again. Similarly, the claimant failed to attend numerous IEs to address ACBs, which were also rescheduled but resulted in no-shows. The insurer paid the claimant ACBs up until it was suspended for non-compliance with section 44. The claimant argued that the IEs were neither “reasonable nor necessary” to determine her entitlement to the benefits. The insurer raised a preliminary issue that the claimant’s application disputing IRBs and ACBs should be dismissed under section 55 and relied upon the test in A.G. v. Allstate Insurance. Adjudicator Grant ruled that the insurer had provided proper notice to the claimant of the IEs in question, that the notices were compliant with the SABS, and that the IEs were medically reasonable and necessary in order to determine entitlement to disputed benefits based upon the claimant’s own medical evidence showing shoulder surgery. Adjudicator Grant ruled that the claimant’s application was barred in its entirety.

McCormick v. Allstate Canada (21-001362)

The claimant failed to attend four separate IEs arranged by the insurer to address post-104 IRBs. The insurer filed a Notice of Motion requesting that the claimant’s application be dismissed. The insurer argued that insufficient medical evidence had been provided by the claimant, and an independent medical opinion was needed in order to properly address the issue of IRB entitlement. The insurer added that it would be extremely prejudiced going forward without such an opinion. The claimant argued that four assessments were not reasonable to determine entitlement to IRBs. The claimant countered that a single orthopaedic examination would be sufficient to address the issue as his physical injuries were the main issue in the claim. The claimant argued the remaining proposed IEs would be an unnecessary, an attempt by the insurer to “round up the usual suspects” and an intrusion into the claimant’s privacy. Vice Chair Maedel noted that the claimant’s file did not have any history of psychological complaints, nor was the claimant alleging a psychological disability or requesting treatment. Vice Chair Maedel found that the insurer’s request for a psychiatric examination was not reasonable as there was no history of a psychological impairment or a claim for treatment. The remainder of the examinations consisting of orthopaedic, functional abilities and vocational assessment were considered reasonable and necessary. The application was stayed for 120 days for the insurer to schedule the three IEs.

Yousuf v. Waterloo Insurance (20-011053)

The insurer sought to have this claimant’s application dismissed or stayed due to the claimant’s failure to attend an IE relating to the MIG and a treatment plan. The insurer had not performed an IE of the claimant in the four years that the claim had been active, and had been prejudiced by being unable to gather a medical opinion of the claimant’s post-accident functioning. The claimant argued that the IE notice had in fact been sent to her previous address, and that she was unaware of it due to the error. The claimant reported that she was willing to remedy the situation, and attend an IE at the insurer’s request. The claimant noted that it would unfair to dismiss her entire claim due to a single missed IE, especially when she was willing to remedy the situation. Vice Chair Maedel agreed to stay the application for 120 days while the insurer scheduled a physiatry IE. The motion to dismiss the application was rejected, as it would be unduly prejudicial and contrary to the rules of fairness.

Joaquim v. Intact Insurance Company (20-011042)

The preliminary issue in this matter is whether the claimant was barred from commencing a proceeding for certain medical benefits because she failed to comply with s. 44 of the Schedule by not attending an insurer’s examination. The claimant submitted an OCF-6 for cannabis prescription expenses and the insurer denied the expense pending a s. 44 examination to determine if the OCF-6 was reasonable and necessary. The claimant failed to attend the assessment and argued that it wasn’t a reasonable request, and the notice given wasn’t proper. Adjudicator Kepman agreed with the insurer that s. 44(3) of the Schedule allows insurers to determine benefits, including prescription medication, via a s. 44 examination. If the legislature intended to exclude prescription drugs, they would have included language to make this clear. Further, Adjudicator Kepman found that the insurer’s reasons for the examination were proper, namely to determine if the OCF-6 was reasonable and necessary due to a lack of medical documentation. Finally, Adjudicator Kepman found that the assessment was reasonable as the claimant had failed to provide the requested information under s. 33 and therefore a s. 44 assessment was required. Adjudicator Kepman concluded that the claimant was barred from commencing a proceeding as a result of s. 44.

Scheltgen v. TD Insurance Meloche Monnex (20-010604)

The preliminary issue in this matter is whether the claimant was barred from commencing a proceeding for IRBs because he failed to comply with s. 44 of the Schedule by not attending an insurer’s examination. The insurer submitted that the claimant should be statute-barred from proceeding with his application for failing to provide a reasonable explanation for not attending the properly scheduled s. 44 IE under s. 37(8) of the Schedule. The claimant submitted that the insurer failed to make reasonable efforts to schedule the IE at a location that was convenient for the claimant and that he was forced to choose between his hockey career and his claim for an IRB. Adjudicator Scheltgen found that the claimant’s decision not to attend the IE was not a reasonable one, as it was the claimant’s choice to leave the country mere days before the scheduled IE that had already been rescheduled to accommodate his career. Finally, Adjudicator Scheltgen stated that the burden lies with the claimant to prove that his non-attendance at an IE was reasonable or, in the alternative, that an IE was not reasonably necessary. Adjudicator Scheltgen concluded that the IE request was reasonable and that its notices were proper under the Schedule. As a result, the claimant was barred from proceeding with his IRB claim as a result of s. 44.

Shen v. Aviva General Insurance Company (20-000662)

The claimant applied to the LAT seeking entitlement to NEBs and chiropractic services proposed in one OCF-18. Pursuant to section 36(4) of the SABS, the claimant argued that the insurer was required to pay for NEBs as a result of a failure to reply to an OCF-3 within 10 days and a failure to provide adequate medical and other reasons why it determined the claimant was not entitled to NEBs. Alternatively, the claimant argued that NEBs were payable as a result of failure to provide s. 44 reports within 10 days of receipt of the reports, as required by section 36(7) of the SABS. The insurer argued that the claimant failed to comply with section 33 requests for medical records and was not entitled to any amount for NEBs. Adjudicator Grant found that the claimant was in non-compliance with section 33, having failed to comply with all reasonable section 33 requests up to the time of the hearing, and was not entitled to payment of NEBs. Adjudicator Grant also found that the section 33 requests were made in compliance with section 36(4) of the SABS. Adjudicator Grant further found that the medical and other reasons in the s. 44 notice of examination were sufficient and the claimant failed to provide compelling evidence that the insurer was required to pay NEBs for any period of alleged s. 44 non-compliance. It was noted that the claimant attended all of the s. 44 assessments, and if there was an issue with reasons for the examination, she could have requested further information from the insurer prior to attending. The claimant was also found not to meet the complete inability test for NEBS. The claim for NEBs was dismissed, but the claimant was entitled to the chiropractic treatment.

Perrigard v. Primmum Insurance Company (19-010651)

The claimant applied to the LAT disputing entitlement to IRBs and a medical benefit. The insurer brought a preliminary motion arguing that the claimant was barred from proceeding with the dispute as he applied to the LAT more than two years after the denials. Adjudicator Boyce agreed with the insurer and dismissed the claimant’s medical benefits dispute. With respect to IRBs, the claimant had argued that the insurer’s denial letter did not comply with section 37 as it did not include medical and other reasons. Adjudicator Boyce disagreed and noted that when an insured returns to work, an insurer was not required to fabricate a medical reason for stopping an IRB, as the medical reason is the return to work. With respect to the disputed medical benefit, Adjudicator Boyce found the insurer’s denial letter to be clear and it provided medical reasons, being that the claimant was discharged from treatment. The insurer also argued that the claimant was barred from applying to the LAT disputing IRBs pursuant to s. 55. Adjudicator Boyce noted that the insurer’s s. 44 notices complied with the SABS and there was correspondence indicating that the claimant was fully aware of the IEs but chose not to attend. Adjudicator Boyce dismissed the claimant’s IRB claim based on s. 55 as well.

Boileau v. Aviva Gen. Ins. Co. (20-005804)

The preliminary issue in this matter is whether the claimant was barred from proceeding with his claims because he failed to comply with s. 44 of the Schedule by not attending properly scheduled IEs. The claimant argued that the insurer arranging IEs to address whether the claims were reasonable and necessary was inconsistent with the previous version of the Schedule. Adjudicator Boyce found that the 1996 SABS had no applicability as the accident occurred on August 13, 2016. The Tribunal could not read in language from an old regulation simply because it would assist the claimant. Adjudicator Boyce also found that the notices were proper as they provided the type of IE, the location, date, time, and the assessor’s name and credentials. The notices also included sufficient medical and other reasons as there was a significant gap in the medical documentation provided at the time of the requested assessments. Finally, the IEs requested were found reasonable and necessary as there was no delay, there was a reasonable nexus between the IEs and the claimant’s impairments, they were the first OCF-18s of their kind, and, as previously stated, there was a gap in the medical documentation. As a result, Adjudicator Boyce concluded that the claimant was statute-barred from proceeding with his claim.