Category: IE Non-Attendance

C.L. v. TD Home and Auto Insurance Company (19-002670)

The claimant sought catastrophic injuries from an ATV accident. He applied to the LAT in relation to IRBs and HK expenses, which had been denied after the claimant returned to work. The insurer argued that the claimant was barred from proceeding with the dispute due to his failure to attend IEs. Adjudicator Boyce acknowledged that the IEs were only requested after the LAT application was made, but that the requests were timely, reasonable, made in good faith, and appropriate given that the insurer did not have any medical opinions regarding the disputed benefits. He also wrote that there was no prejudice to the claimant by attending the IEs (he may even be found entitled to the benefits). Finally, the alleged deterioration of the claimant’s condition warranted a thorough set of IEs.

S.R. v. Aviva Insurance Canada (17-008249)

The claimant sought reconsideration of the Tribunal’s decision that he was barred from pursuing his claim due to failure to attend an orthopaedic assessment. Vice Chair Marzinotto granted the reconsideration due to the failure of the insurer to note the IE assessor’s regulated health profession. It was the insurer’s obligation to provide that information, not the claimant’s job to investigate it. Vice Chair Marzinotto also ordered that because the insurer ceased payment of IRBs based on the IE non-attendance, which was improper, that IRBs were to be paid for the ten month suspension.

M.A. v Certas Home and Auto Insurance (19-002077)

The insurer raised a preliminary issue regarding whether the claimant was statute barred from proceeding with her claim for a catastrophic impairment pursuant to section 55 of the SABS, because she refused to attend a neuropsychological IE. Adjudicator Boyce concluded that the claimant was barred from proceeding with her claim until she attended the requested IE. In doing so, the adjudicator noted that the insurer’s request for the IE was timely and reasonable, made in good faith and appropriate given its rights under the SABS. Adjudicator Boyce further noted that without a complete CAT assessment, the insurer would be at a disadvantage from an adjusting standpoint and in the proceedings before the Tribunal.

B.H. v. Aviva Insurance Canada (18-000751, 18-001161, 18-000345)

The claimant sought entitlement to NEBs and various medical benefits. The insurer argued that the claimant failed to attend IEs and was barred from proceeding with the claim. Adjudicator Johal agreed with the insurer, holding that the request for IEs was reasonable and that the notices complied with section 44 of the SABS.

T.S. v. Unifund Assurance Company (19-000666)

The claimant sought entitlement to a chronic pain programme. The insurer argued that the claimant failed to attend IEs, barring the claim from proceeding due to section 55. Adjudicator Boyce agreed with the insurer. He found the requested IEs to be reasonable and the IE notices to be compliant with section 44.

M.R. v. Allstate Insurance Company (17-008969)

The claimant sought reconsideration of the Tribunal’s denial of ACBs and order barring the claim for medical benefits based on IE Non-Attendance; the Tribunal had awarded IRBs. Adjudicator Mazerolle held that the Tribunal denials did not meet the criteria in Rule 18 for reconsideration. However, Adjudicator Mazerolle found that the award of IRBs beyond the 104-week mark was an error and that the claimant had not led evidence to support IRBs on the “complete inability” test.

J.B.W. v. Aviva General Insurance (18-008128)

The claimant sought removal from the MIG and entitlement to a treatment plan for chiropractic therapy. The insurer had requested the claimant’s attendance at an IE to address the MIG and the medical benefits. The claimant failed to attend, and the insurer argued that claim was barred by section 55. Adjudicator Goela held that the IE notice was compliant with section 44, and that the claimant could not proceed with his claim until attending the IE.

Applicant v. Certas Direct Insurance Company (17-008853)

The claimant sought removal from the MIG, and entitlement to ACBs and various medical benefits. The insurer argued that the claimant was barred from proceeding to a hearing due to his failure to attend an IE addressing attendant care benefits. Vice Chair Helt concluded that the claimant was not barred from proceeding with his claim for ACBs because the IE notices contained the wrong address for the IE location. In terms of the claimed benefits, Vice Chair Helt found that the claimant suffered from psychological injuries falling outside of the MIG. She awarded the claimed psychological assessment and therapy, but held that the proposed physical therapy was not reasonable and necessary. Finally, in terms of the ACBs, Vice Chair Helt concluded that the claimant did not require personal care and that he had not incurred any attendant care expenses.

Hedley v. Aviva Insurance Company of Canada (2019 ONSC 5318)

Aviva sought reconsideration of the Tribunal’s reconsideration that its section 38 denial did not provide sufficient “medical and any other reasons for the examination,” and that the claimant was not required to attend the IE. The Court upheld the reconsideration decision as falling within the range of reasonableness. The Court wrote: “where reasons are required, they must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination. Mere ‘boilerplate’ statements do not provide a principled rationale to which an insured can respond. In essence, such statements constitute no reasons at all.”

C.G. v. Travelers Insurance (18-001021)

The claimant applied to the Tribunal seeking entitlement to IRBs and medical benefits. The insurer raised a preliminary issue requesting that the Tribunal bar the claimant’s dispute over IRBs due to his failure to attend a s. 44 FAE with a kinesiologist. Adjudicator Létourneau concluded that the claimant was entitled to IRBs for the pre-104 week period but not entitled to IRBs for the post-104 week period. With respect to the preliminary issue, Adjudicator Létourneau concluded that the proposed s. 44 FAE was not reasonably necessary. Adjudicator Létourneau found that the s. 44 neurological and physiatry assessments afforded the insurer ample opportunity to assess the claimant’s physical impairments and that a kinesiologist would not be able to comment more specifically on medical impairments than what was already obtained. Adjudicator Létourneau also noted that the claimant worked as a taxi driver pre-accident and that the FAE would not likely have provided more detail with respect to the claimant’s pre-accident job duties. With respect to the IRB dispute, Adjudicator Létourneau concluded that the claimant had provided sufficient evidence that but for the accident, he would have continued to drive a taxi. Adjudicator Létourneau pointed to the claimant’s back pain with prolonged sitting and mental impairments as causing his inability to complete the tasks of his pre-accident employment. As for the post-104 week period, Adjudicator Létourneau noted that the claimant had returned to driving, evidenced by the claimant’s own reporting and surveillance. Adjudicator Létourneau concluded that the claimant could return to work as a driver in other capacities, such as a chauffeur or delivery driver, and that he therefore did not meet the post-104 week disability test. Finally, Adjudicator Létourneau awarded all of the medical benefits plus interest.

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