Category: IE Non-Attendance

B.H. v. Aviva Canada Inc. (17-003774)

The claimant sought reconsideration of the Tribunal’s decision that he could not proceed with his application due to failure to attend an IE. Executive Chair Lamoureux held that the insurer’s denial of medication benefits and subsequent request for an IE did not comply with sections 38 and 44 of the SABS. She wrote that the insurer’s denial did not refer to the medical information Aviva relied upon to make its determination or explain why it could not determine whether the treatment recommendations were not reasonable. Executive Chair Lamoureux held that improper denial resulted in the disputed medical benefits being payable.

Applicant v. Aviva Insurance (18-000467)

The claimant sought entitlement to a mental health assessment. The insurer had requested the claimant’s attendance at an IE to address. The claimant attended the IE but it did not proceed because the claimant wishes to record the IE. The insurer argued that section 55 barred the claimant from seeking entitlement at the LAT. Adjudicator Kershaw held that the insurer’s IE notice was deficient because it did not provide specific details about the claimant’s condition that formed the basis of the insurer’s decision, and when the claimant sought clarification, the insurer said it was simply asking the claimant to comply with the SABS.

Applicant v Unifund Insurance Company (17-009004)

The insurer requested reconsideration of part of a decision made by external counsel for the Tribunal during a case conference. At the case conference, the insurer requested the determination of the preliminary issue of whether the claimant was precluded from proceeding with his application to the LAT because he failed to attend IEs. External counsel directed that this preliminary issue would be heard with the issues in dispute at an in-person hearing. Adjudicator Jovanovic granted the request for reconsideration and held that the insurer was not afforded procedural fairness when its request for a determination of the preliminary issue was denied without reasons. Both parties should have the benefit of a decision on the preliminary issue before incurring the expenses of a full hearing. Adjudicator Jovanovic held that the preliminary issue would be determined first, and the balance of the hearing would be adjourned pending the release of a decision on the preliminary issue.

Applicant v. Aviva Insurance Company of Canada (17-004147)

The claimant sought removal from the MIG and entitlement to IRBs and various medical benefits. The insurer argued that the claimant failed to attend an IE, which barred payment of further IRBs. Adjudicator Norris concluded that the claimant did not suffer pre-existing conditions that would prevent recovery under the MIG and that the claimant did not suffer psychological injuries in the accident. He also held that the claimant was not entitled to further IRBs, and that the claimant’s non-attendance at an IE without reasonable explanation barred payment of IRBs for the period of non-compliance.

Applicant v. Aviva Insurance Canada (17-007036)

The claimant sought entitlement to IRBs, occupational therapy treatment, the cost of an in-home occupational therapy assessment, and a special award. The respondent submitted that the claimant was barred from filing a LAT application due to failure to attend a s. 44 assessment, pursuant to s. 55 of the SABS. The s. 44 assessment had been arranged to address entitlement to IRBs and the in-home occupational therapy treatment. Adjudicator Boyce found that the claimant was statute-barred from applying to the LAT for failure to attend a properly scheduled s. 44 IE.

I.K. v. Coseco Insurance Company (17-004897)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to medical benefits proposed in five treatment plans. The claimant argued that he should be removed from the MIG due to psychological impairments, chronic pain, and pre-existing migraines and left wrist/arm pain. Adjudicator Boyce found that pursuant to s. 55(1)2 of the SABS the claimant was statute barred from claiming entitlement to a s. 25 psychological assessment for failure to attend an IE assessment. Adjudicator Boyce found that claimant’s impairments were within the MIG and dismissed the application.

Applicant v. Aviva Insurance Canada (17-007683)

The claimant sought payment for IRBs. The respondent brought a preliminary issue motion seeking to bar the claimant from commencing her application because she failed to attend IE assessments. Adjudicator Ferguson concluded that the insurer’s IE notices were compliant with s. 44 of the SABS. Adjudicator Ferguson concluded that the claimant’s application was not allowed to proceed until she attended IEs requested by the insurer to assess the claimant’s claim for IRBs.

D.C. v. Aviva Insurance Company (17-002921)

The claimant sought entitlement to NEBs, medical benefits, and the cost of various examinations. The insurer raised s. 55 and s. 33 defences. Pursuant to s. 55, Adjudicator Ferguson held that the claimant was barred from commencing part of the application as a result of his failure to attend IE assessments. He was only barred from pursuing the issues in dispute that were relevant to the IE assessments. Adjudicator Ferguson held that the claimant was entitled to NEBs for an initial period based on the insufficiency of the insurer’s  s. 35(1) notice; however, the insurer was entitled to withhold payment of NEBs during the period in which the claimant was not in compliance with s. 33 requests.

Applicant v. Aviva Insurance Company (17-002973)

The claimant sought entitlement to IRBs, ACBs, and medical benefits. The insurer argued that the claimant failed to attend an IE assessment contrary to the SABS. Adjudicator Maedel agreed with the insurer in regard to most of the claimed benefits, and held that the IEs were not requested inappropriately. In terms of the MIG and a psychological treatment plan, the adjudicator held that the claimant failed to prove that she suffered a psychological injury as a result of the accident. He preferred the IE opinions over that of the claimant’s assessors, which appeared to be boilerplate. He also commented that the family physician’s records did not show any connection between the accident and the claimant’s psychological impairments.

Applicant v. Certas Direct Insurance Company (16-003108)

The claimant sought entitlement to NEBs, ACBs, and a chronic pain assessment. The insurer argued that the claimant was barred from seeking the chronic pain assessment for failure to attend an IE assessment. Adjudicator Anwar found that the claimant was barred from pursuing the cost of the chronic pain assessment due to her nonattendance at a s. 44 assessment and because the LAT application was filed prior to the insurer providing a response to the proposed treatment. The adjudicator found that the claimant failed to prove that she sustained a complete inability to carry on a normal life as a result of the accident. In coming to this conclusion, Adjudicator Anwar noted that he found the records of the claimant’s family doctor more persuasive that the IEs and s. 25 medicolegal reports, the evidence of the claimant and her son, and the report of the family doctor prepared for the hearing.  The claimant was also not to be entitled to ACBs.