Category: IE Non-Attendance

The insurer brought a preliminary issue motion to bar the claimant’s claim for non-attendance at IEs. Although he had attended the IE clinic at the appropriate time, he had become aggressive and refused to proceed until the clinic agreed to use the consent form he had personally prepared. At the motion hearing, the claimant argued that s. 44 provided him the right to require his IE assessors to have expertise in Platelet-Rich Plasma therapy (the treatment modality that was being proposed in the disputed treatment plans that had triggered the IE). He also submitted that s. 44 required an assessment to be “reasonably necessary”, which included providing information regarding the medical specialization of the assessors. Adjudicator Flude rejected the claimant’s position and stated that the terms “reasonably necessary” in s. 44(1) were written to prevent insurers from attempting to wear out a claimant by requiring them to attend multiple IEs for the same matter. Adjudicator Flude noted that the claimant had unsuccessfully raised the same argument before the LAT regarding s. 44 and his IE assessors’ expertise on a previous occasion. He noted that the claimant’s reassertion of the same argument appeared to be an abuse of process. He found that the claimant had not identified the elements of his IE clinic’s consent form that were problematic, and as a result, that it appeared to be an excuse to refuse to attend IE assessments. Adjudicator Flude held that the claimant was barred from proceeding under s. 55(1), and that the circumstances did not warrant an exercise of the LAT’s discretion under s. 55(2) and (3).

The claimant applied to the LAT disputing numerous treatment plans for therapy, assessments, and psychological treatments. The insurer raised a preliminary issue and argued that the claimant was barred from proceeding with the dispute under section 55 for failure to attend IEs to address IRBs. Vice-Chair McGee noted that the claimant had not in fact disputed IRBs at the time of the hearing, but rather the insurer was attempting to bar the claimant’s anticipated claim should IRBs be denied in the future. The insurer argued that the claimant had a “long history” of missing IE appointments, Vice-Chair McGee noted that the assessment in question was in fact terminated by the assessor themself, rather than the claimant, though the insurer argued that the termination was due to the claimant’s abusive behaviour and attempts to intimidate the assessor in question. Vice-Chair McGee noted that the IE assessor did publish a report noting the termination, but made no mention of the claimant being abusive, swearing or attempting to intimidate her. The only evidence provided at the hearing of swearing or abusive behaviour was in the form of an email sent by the adjuster to the claimant’s representative months after the assessment occurred. The email mentioned that the claimant was swearing, but made no mention of abusive behaviour. Vice Chair McGee did not find the insurer’s evidence persuasive, as the email was from a third-party who was not present during the assessment, and the IE assessor never alleged the supposed behaviour of the claimant in her own report. Vice-Chair McGee ruled that the claimant had made himself reasonably available for the assessment, which had been rescheduled numerous times due to COVID and did not bar the claimant from an IRB claim.

The claimant applied to the insurer for IRBs and ACBs. The insurer paid the claimant an IRB from her initial eligibility until August 22, 2019. The insurer had arranged four IEs in July of 2019, which the claimant did not attend. The insurer rescheduled all four IEs to provide the claimant another chance to attend, but she failed to attend all four IEs yet again. Similarly, the claimant failed to attend numerous IEs to address ACBs, which were also rescheduled but resulted in no-shows. The insurer paid the claimant ACBs up until it was suspended for non-compliance with section 44. The claimant argued that the IEs were neither “reasonable nor necessary” to determine her entitlement to the benefits. The insurer raised a preliminary issue that the claimant’s application disputing IRBs and ACBs should be dismissed under section 55 and relied upon the test in A.G. v. Allstate Insurance. Adjudicator Grant ruled that the insurer had provided proper notice to the claimant of the IEs in question, that the notices were compliant with the SABS, and that the IEs were medically reasonable and necessary in order to determine entitlement to disputed benefits based upon the claimant’s own medical evidence showing shoulder surgery. Adjudicator Grant ruled that the claimant’s application was barred in its entirety.

The claimant failed to attend four separate IEs arranged by the insurer to address post-104 IRBs. The insurer filed a Notice of Motion requesting that the claimant’s application be dismissed. The insurer argued that insufficient medical evidence had been provided by the claimant, and an independent medical opinion was needed in order to properly address the issue of IRB entitlement. The insurer added that it would be extremely prejudiced going forward without such an opinion. The claimant argued that four assessments were not reasonable to determine entitlement to IRBs. The claimant countered that a single orthopaedic examination would be sufficient to address the issue as his physical injuries were the main issue in the claim. The claimant argued the remaining proposed IEs would be an unnecessary, an attempt by the insurer to “round up the usual suspects” and an intrusion into the claimant’s privacy. Vice Chair Maedel noted that the claimant’s file did not have any history of psychological complaints, nor was the claimant alleging a psychological disability or requesting treatment. Vice Chair Maedel found that the insurer’s request for a psychiatric examination was not reasonable as there was no history of a psychological impairment or a claim for treatment. The remainder of the examinations consisting of orthopaedic, functional abilities and vocational assessment were considered reasonable and necessary. The application was stayed for 120 days for the insurer to schedule the three IEs.