In this preliminary issue decision, the insurer argued that the claimant had failed to attend an IE and EUO and therefore could not proceed to arbitration at the LAT. Adjudicator Neilsen held that the insurer’s request for an IE was reasonable, and the insurer had provided a notice that satisfied section 38 of the SABS. The claimant was barred from seeking the claim, but was given 30 days to rectify the non-attendance. Adjudicator Neilsen left the issue of EUO non-attendance to the hearing adjudicator.
The claimant sought entitlement to eight treatment plans. The insurer maintained a MIG position. Adjudicator Makhamra found the claimant failed to meet the burden of proof to warrant removal from the MIG. The claimant holds the onus to prove removal from the MIG is justified. In doing so, Adjudicator Makhamra distilled the analysis to three questions: i. Are the claimant’s injuries predominantly minor? ii. Does the claimant suffer from a pre-existing medical condition that prevents him from reaching maximal recovery if he is subject to the $3500 cap in the Minor Injury Guideline? and, iii. Are the treatment plans necessary and reasonable for the claimant’s treatment? Adjudicator Makhamra was satisfied with the notice letters and said the insurer “explained that the applicant’s injuries were within the MIG; it described the diagnosis, and advised of its intention to schedule an insurer’s examination where applicable.” The treatment plans were found not payable.
The claimant sought IRBs during a period in which he was in non-compliance with the requirement to attend an IE. He argued that there were no “medical and any other reasons” in the IE notice. Adjudicator Richards upheld the non-payment of IRBs, stating there is no requirement to “invent” a medical reason; medical and other reasons are unique to each case and in this case the level of the claimant’s recovery and future prognosis were valid medical and other reasons.
The insurer brought a motion to dismiss a claim on the basis of the claimant’s non-attendance at IEs and due to the overlap with issues previously before FSCO. The IE notices were deemed insufficient; therefore, the insurer’s s. 55 defence did not apply. The claimant was not barred from proceeding with the issues that were originally before FSCO as there was never a determination on those issues, which were withdrawn rather than dismissed.
The claimant failed to attend an IE due to the notice letter being lost between his wife and parents’ mail. Adjudicator Marzinotto found NEBs payable for the period the claimant was held in non-compliance because he was credible. Although it would have been reasonable for the claimant to provide an updated address, his failure to do so was forgiven due to his many different rehabilitation stays for addiction.