Category: IE Non-Attendance

L.F. v. Unifund Assurance Company (16-001020)

The claimant sought entitlement to IRBs and two treatment plans for a social emotional assessment and a functional abilities evaluation. The respondent initially paid weekly IRBs of $209.61. Payments were stopped when the claimant failed to attend three IEs in March and April 2016. After the claimant attended IEs in August 2016, the respondent denied IRBs entitlement based on the IE reports. Adjudicator Bickley concluded that as a result of the claimant’s psychological impairments, she was substantially unable to perform the essential tasks of her employment. Having found her entitled to IRBs, the Adjudicator determined that she was ineligible to receive IRBs between April 21, 2016 and July 18, 2016 due to her failure to provide a credible reason for her non-attendance at the March and April 2016 IEs. With respect to the disputed treatment plans, Adjudicator Bickley concluded that they were not reasonable and necessary. The proposed social emotional assessment was duplicative of the previously approved psychological assessment, and the claimant had submitted no evidence to support her position that the unpaid portion of the functional abilities evaluation was reasonable.

R.L. v. State Farm Insurance Company (17-000020)

The insurer brought a preliminary issues motion seeking to preclude the claimant from bringing an application for arbitration disputing the denial of medical benefits. The claimant asserted the requested assessments were unreasonable. Adjudicator Maedel identified the following factors to determine if an IE was requested: (i) The timing of the insurer’s request; (ii) The possible prejudice to both sides; (iii) The number and nature of the previous insurer’s examinations; (iv) The nature of the examination(s) being requested; (v) Whether there are any new issues being raised in the applicant’s claim that require evaluation; and, (vi) Whether there is a reasonable nexus between the examination requested and the applicant’s injuries. The requested IEs were deemed reasonable and therefore, per s. 55 of the SABS the claimant was precluding from bringing an application for arbitration due to non-attendance at an IE.

Applicant v. Cumis General Insurance Company (16-003144)

The claimant sought a catastrophic designation. The insurer requested five IEs. The claimant agreed to attend three, and did not attend two because she felt the remaining assessments were excessive and unreasonable. On the basis of refusing to attend the remaining IEs, the insurer designated the applicant non-CAT. The claimant filed an application for arbitration. The insurer sought to preclude a hearing due to the claimant’s non-attendance at an IE. The Tribunal denied the insurer’s motion and determined the outstanding IEs were not reasonable; the matter was set down for a hearing. On reconsideration, Executive Chair Lamoureux ruled that although the insurer may want the remaining IE, it is not one it is entitled to have by virtue of the assessment being unreasonable. The appeal was dismissed.

S.S. v. Aviva Insurance Company (16-002772)

The insurer argued in this preliminary motion that the claimant was barred from pursuing the claimed medical benefits due to his non-compliance with attending IEs. The claimant resisted the motion, arguing that the insurer’s IE notices were insufficient. Adjudicator Truong referred to the FSCO decision in Augustin and held that the insurer’s notice were compliant with the SABS, and that the claimant was barred from pursuing the claimed medical benefits. The claim was therefore dismissed.

M.B. v. RBC General Insurance Company (16-002963)

The claimant sought entitlement to a chronic pain program. The insurer brought a preliminary motion that the claimant had failed to attend an IE. Adjudicator Gottfried concluded that the IE notice was insufficient because it did not provide medical and other reasons for the IE, and that the claimant was not barred from seeking entitlement to the medical benefit.

G.P. v. Cumis General Insurance Company (16-003144)

The claimant sought entitlement to various medical benefits and a catastrophic impairment determination. The insurer argued that the claimant had not attended two of five IEs it had requested. Adjudicator Pay held that section 55 did not apply, and that the multiple IEs requested by the insurer were not reasonable. The claim was allowed to proceed.

W.P. v. Aviva Insurance (16-000693)

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.

J.S. v. RBC Insurance Company (16-000576)

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.

J.W. v. The Co-operators General Insurance Company (16-000248)

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.

S.L. v. Certas Home and Auto Insurance Company (16-000213)

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.