Category: IE Non-Attendance

M.B. v. Aviva Insurance Canada (16-002325)

The Tribunal initially held that the claimant failed to attend IEs related to post-104 week IRBs. The claimant applied for reconsideration and was successful. Executive Chair Lamoureux held that the IE notice sent to the claimant did not provide sufficient reasons, in particular because the insurer had simply restated its reasons from IEs related to initial entitlement to IRBs that “the impairments identified do not appear clearly or directly caused by the accident.” The Executive Chair reasoned that this notice would not have informed an unsophisticated person why a further IE was required for a benefit that had been granted and was being paid. The Executive Chair also held that the claimant need not raise the issue of the IE notice contents at the time of the IE, and that the issue could be raised for the first time during litigation.

M.B. v. Aviva Insurance Canada (16-002325)

The Tribunal initially held that the claimant failed to attend IEs related to post-104 week IRBs. The claimant applied for reconsideration and was successful. Executive Chair Lamoureux held that the IE notice sent to the claimant did not provide sufficient reasons, in particular because the insurer had simply restated its reasons from IEs related to initial entitlement to IRBs that “the impairments identified do not appear clearly or directly caused by the accident.” The Executive Chair reasoned that this notice would not have informed an unsophisticated person why a further IE was required for a benefit that had been granted and was being paid. The Executive Chair also held that the claimant need not raise the issue of the IE notice contents at the time of the IE, and that the issue could be raised for the first time during litigation.

Applicant v. Certas Home and Auto Insurance Company (16-001905)

The claimant sought entitlement to IRBs and various medical benefits. Regarding IRBs, Adjudicator Bickley held that the claimant had failed to prove a substantial inability beyond three months, and also held that the claimant had failed to provide financial records supporting a higher weekly IRB quantum. The adjudicator made an adverse inference due to the claimant’s failure to provide requested financial records. In terms of the medical benefits, Adjudicator Bickley held that the claimant’s non-attendance at two IEs barred her from seeking a chronic pain treatment plan. Two other assessments were approved as being reasonable and necessary. The remaining treatment plans were denied. Finally, Adjudicator Bickley allowed the claimant to add a special award to her claim, but denied entitlement to such an award.

R.D. v. Aviva Insurance Canada (17-000851 and 17-000911)

The claimant sought entitlement to a number of medical benefits. The insurer resisted the claims and noted the failure to attend an IE as reason to preclude the proceedings. Adjudicator Rebecca Hines determined that the proposed IE was reasonable and not excessive. Accordingly, the claimant was precluded from proceeding with the claims until the insurer’s examination was completed.

Applicant v. The Co-operators (16-004674)

The claimant sought removal from the MIG, entitlement to various medical benefits, and entitlement to the cost of an accounting report. The insurer raised a preliminary issue regarding the claimant’s non-attendance at various insurer examinations. Adjudicator Treksler held that the claimant was suffering from chronic pain syndrome and psychological impairment. However, she awarded only some of the claimed medical benefits. Four treatment plans were denied due to the claimant’s failure to attend insurer examinations, and one was denied because it was incurred before a treatment plan was submitted. The cost of the accounting report was denied because the adjudicator concluded that the claimant’s entitlement to income replacement benefits was straightforward, and an accounting report was not reasonable and necessary.

Applicant v. Aviva Insurance Canada (17-001088)

The claimant sought entitlement to two treatment plans. The insurer arranged two IEs, but the claimant did not attend. The insurer raised a preliminary issue, asserting the claimant was not compliant with an IE and therefore barred from bringing a claim before the LAT. Adjudicator Avvy Go reviewed the notice sent to the claimant and determined it was compliant. The claimant was therefore precluded from bringing a claim under section 55. In the interest of fairness, Adjudicator Go adjourned the proceedings for 60 days to allow the IE to take place; should the claimant fail to attend, the LAT proceeding would be dismissed.

S.C. v. Aviva Canada Inc. (17-001537)

The claimant sought entitlement to a number of medical treatment plans. The insurer denied the plans based on a MIG designation and scheduled IEs. The claimant failed to attend and instead brought an application for arbitration. The insurer brought a motion to preclude the claims given the claimant’s non-attendance at IEs pursuant to section 55. Adjudicator Ian Maedel determined the IE notices were compliant and that the claimant failed to attend under section 55 and dismissed the claimant’s matter.

Applicant v. Certas Direct Insurance (16-004092)

The insurer argued that the claimant had failed to attend a requested IE, and therefore could not pursue his claim for two medical benefits. Adjudicator Go held that the insurer’s IE request letter did not satisfy the requirements of section 44 in failing to provide medical reasons for the examination. The claimant was therefore permitted to continue his claims for medical benefits.

J.M. & N.M. v. RBC General Insurance Company (17-001227 & 17-001283)

The claimants, two adult children whose mother was seriously injured in a motor vehicle accident, sought entitlement to one treatment plan each for social work assessments. The claimants failed to attend IEs. The claimants took the position that they were not required to attend the IEs because the treatment plans were automatically payable on the basis that RBC did not approve or deny the OCF-18s within 10 business days. Adjudicator Sewrattan concluded that the respondent was not required to pay for the assessments incurred by each of the claimants, as the claimants had incurred the expense prior to the expiry of the 10 day period. The expenses were thus incurred before the respondent could reasonably approve or deny the expense, and the claimants were precluded from applying to the LAT pursuant to section 55 of the SABS.

P.I. v. Aviva General Insurance (17-000465)

The insurer brought two preliminary issues in defence of this accident benefits claim: first, whether the claimant was barred from pursing a LAT dispute due to failure to attend IEs, and second, whether the claimant had failed to comply with section 33 requests. Adjudicator Treksler held that the claimant was barred from pursuing income replacement benefits due to her failure to attend IEs that were reasonably requested. In terms of the section 33 requests, Adjudicator Treksler held that the claimant’s failure to answer all questions at an examination under oath did not result in section 33 barring entitlement to accident benefits because many of the questions were issues the insurer already had answers to. Further the requests for documents were made after the insurer had already denied entitlement to income replacement benefits, and were therefore not reasonably required.

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles

Powered by Crow & Pitcher

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com