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.
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.
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.
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.
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.
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.
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.
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.
The claimant sought entitlement to various treatment plans, IRBs and dental treatment. The insurer raised section 33 and 55 defences due to the claimant’s failure to provide requested information and attend IEs. Adjudicator Ferguson held that the claimant was barred from seeking IRBs and dental treatment for failing to provide dental records, invoices, an OCF-10, income tax returns, and post-accident income information requested per section 33. The adjudicator held that there was no legal basis for the claimant’s argument that as long as best efforts are made under s. 33, the claim moves forward. The adjudicator also held that the claimant’s appeal for other goods and services of a medical nature was barred per section 55. The claimant’s reason for non-attendance was that her psychological and pain-related impairments prevented her from leaving her house, which was not supported with any evidence and the insurer had surveillance showing her participating in various ADLs outside of her house. The adjudicator denied various treatment plans due to lack of medical evidence, but found the balance of a chiropractic treatment plan payable as the insurer only denied the treatment plan based on the MIG, and was not allowed to rely on the MIG position after covering psychological treatment.
The claimant sought entitlement to an ADL assessment and orthopedic assessment. The insurer argued that the claimant was statute-barred from disputing the denials. Adjudicator Norris held that the claimant was not entitled to the ADL assessment, but was entitled to the cost of the orthopedic assessment plus interest. The claimant claimed to have not received denial letters from the insurer. The adjudicator held that the claimant was barred from adjudicating the ADL assessment as the claimant received an unequivocal denial on June 4, 2015, over 2 years before the LAT Application. However, the adjudicator held that there was no clear and unequivocal denial of the orthopedic assessment. The first “denial” letter noted that the insurer would not fund the treatment plan “at this time” and a second letter only referenced the assessment plans by HCAI number, which the adjudicator found made it too difficult for the claimant to determine which plans were in dispute. The claimant incurred the cost of the disputed orthopedic plan after the 10th business day after the plan was proposed and prior to receipt of a clear and unequivocal denial. The insurer argued that the claimant was barred per section 55 from adjudicating entitlement to the orthopedic assessment for failure to attend a section 44 IE. The adjudicator held that the claimant was not barred as the insurer requested an assessment more often than reasonably necessary. The claimant attended a section 44 orthopedic assessment, but the insurer had failed to have the assessor assess the claimant’s entitlement to the disputed orthopedic assessment. Adjudicator Norris held that it was unreasonable to subject the claimant to another in-person assessment so soon after the first assessment simply because the insurer failed to address the issue during the previous IE.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP