Category: IE Non-Attendance

R.D. v. Aviva Insurance Company (18-000725)

The claimant sought reconsideration of the Tribunal’s decision that he was barred from proceeding with his claim due to IE Non-Attendance. He argued that he was unable to attend due to mental and physical disabilities. Vice Chair Trojek dismissed the reconsideration. She found no support for the claimant’s position that the Tribunal did not consider the medical evidence of his ability to attend an IE. She also upheld the Tribunal’s decision that a paper review would unduly prejudice the insurer’s ability to present its case.

N.H. v. Coachman Insurance Company (18-006770)

The claimant sought further IRBs; the insurer argued that the claimant failed to attend an IE. Adjudicator Ferguson held that the subject IE was not reasonably necessary to determine the claimant’s entitlement to benefits. The IE was scheduled after the Case Conference; the scheduling of the IE would delay the hearing of the merits of the claim; the IE was similar in nature to earlier IEs; and there was no new information that required the insurer to obtain new IEs. The claim was allowed to continue.

A.R. v. Certas Direct Insurance Company (18-005035)

The claimant sought entitlement to IRBs; the insurer argued that the claimant failed to attend an IE. Adjudicator Johal concluded that the claimant was barred from proceeding with the LAT dispute until attending an IE. Although the claimant was justified in not attending the initially scheduled IE based on a note from his family doctor, he was not justified in failing to attend a rescheduled IE.

J.D.S. v. Aviva Insurance Canada (18-002529)

The claimant sought entitlement to a speech language pathology assessment. He failed to attend an IE scheduled by the insurer; the insurer argued that the claimant was barred from applying to the LAT in accordance with section 55. Adjudicator Johal agreed with the insurer and concluded that section 55 applied. The IE notice provided the requisite information and the IE request was reasonably necessary.

V.D. v. Aviva Insurance Canada (18-007435)

This is a preliminary issue decision addressing the following issues: 1) whether the claimant was statute barred from applying to the LAT for non-earner benefits for failure to attend a s. 44 OT assessment, and 2) whether the claimant was barred from proceeding with her claim for payment of a psychological assessment. Adjudicator Ferguson held that the claimant was not barred from applying to the LAT pursuant to s. 55 because the insured’s notice of assessment did not provide adequate medical and other reasons for requesting the OT assessment. Adjudicator Ferguson held that the LAT had no jurisdiction over the cost of examination claimed by the claimant as there was no dispute over the claimant’s entitlement or the amount payable. The only issue was that the insurer required a detailed breakdown of costs from the treatment provider prior to paying the incurred benefit. Adjudicator Ferguson held that the claimant could not proceed with her claim for the cost of the psychological assessment.

D.S. v. The Personal Insurance Company (18-001204)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to a s. 25 psychology assessment. The insurer raised the preliminary issue of whether the claimant was statute barred from applying to the LAT for the psychology assessment because he failed to attend a s. 44 examination. The claimant was involved in an accident in 2014 and had previously attended a s. 44 psychology examination. In 2018, the claimant submitted an OCF-18 for a s. 25 psychology assessment. The insurer denied the treatment plan and arranged for a second s. 44 psychology assessment to address the claimant’s entitlement to benefits. The claimant did not respond to the s. 44 request and did not attend the s. 44 assessment. The claimant submitted that there was no non-compliance with the s. 44 notice as the notice was provided to the claimant only and not the claimant’s counsel. Adjudicator Ferguson found there was nothing in the SABS indicating that failing to provide a copy of a notice to a claimant’s representative provides a reasonable excuse for ignoring a notice. Adjudicator Ferguson agreed with the insurer that its request for another psychological assessment was reasonable considering the lengthy timeline between treatment requests and the lack of up-to-date medical records, and rejected as baseless the claimant’s submission that scheduling a s. 44 assessment reflects an insurer’s awareness that there is need of s. 25 assessments. Adjudicator Ferguson held that the claimant was statute barred from applying to the LAT for the psychological assessment, and that he was not entitled to treatment outside of the MIG. The application was dismissed.

Applicant v. Intact Insurance Company (17-004109)

The insurer sought reconsideration of the Tribunal’s order that the claimant was required to attend two Ies before the matter could proceed, in accordance with section 55. However, the Tribunal’s decision included terms regarding the IEs; Intact disputed those terms. Vice Chair Shapiro upheld the terms imposed by the Tribunal. He concluded that the Tribunal properly performed a “balancing act,” and that the Tribunal did not make an error. There was no evidence that a paper review rather than an in-person review would be impossible or meaningless.

Applicant v. Intact Insurance Company (17-004109)

The insurer sought reconsideration of the Tribunal’s order that the claimant was required to attend two Ies before the matter could proceed, in accordance with section 55. However, the Tribunal’s decision included terms regarding the IEs; Intact disputed those terms. Vice Chair Shapiro upheld the terms imposed by the Tribunal. He concluded that the Tribunal properly performed a “balancing act,” and that the Tribunal did not make an error. There was no evidence that a paper review rather than an in-person review would be impossible or meaningless.

Applicant v. Aviva Insurance Canada (18-000725)

This is a preliminary hearing decision regarding whether the claimant was statute barred from proceeding with an application to the LAT for failure to attend a s. 44 examination. The claimant’s position was that he was unable to attend further s. 44 assessments due to mental and physical health impairments. Adjudicator Watt held that the claimant’s right to proceed with all issues except housekeeping expenses was suspended until the claimant attended the s. 44 assessments requested by the insurer.

M.Y. v. Aviva Insurance Company (17-007683)

The Insurer filed a Request for Reconsideration of a hearing decision that allowed the claimant to proceed with her application despite non-attendance at insurer examinations requested under s. 44 of the SABS. The hearing adjudicator had ordered the respondent to attend the insurer examinations as a condition to allowing the claimant to proceed. The insurer had been ordered to provide the claimant with new examination dates within 35 business days of receiving the hearing decision. The insurer argued in the Request for Reconsideration that due to the prejudice it suffered as a result of the claimant’s failure to attend numerous examinations over a period of years, the claimant should be barred from proceeding with her application. Vice Chair Trojek dismissed the insurer’s request that the claimant be completely barred from proceeding with the LAT application. Vice Chair Trojek found that the hearing decision did not violate the rules of natural justice or make a significant error in law or fact.

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