Category: IE Non-Attendance

The claimant was involved in an accident on November 25, 2015 and sought attendant care benefits. The insurer denied ACBs and the claimant filed a LAT Application. The insurer filed a motion requesting that the claimant’s LAT Application be barred pursuant to s. 55 of the SABS for failure to attend three properly scheduled independent medical examinations to address ACBs. After the insurer filed the motion, the claimant was accepted as CAT and advised the LAT that she wanted to attend the IE in order to move the matter forward. In response, the insurer requested an Order staying the proceedings until the claimant attended the IE. Vice-Chair Flude noted that the claimant had in fact attended numerous other assessments addressing attendant care with both s. 25 and s. 44 providers. The claimant argued that the subject notice was not compliant with the SABS and did not include sufficient medical and other reasons. Vice-Chair Flude disagreed, noting that the letter made specific references to the claimant’s medical records noting an improvement in physical ability, as well as the fact that the disputed Form 1 was over three times the recommended amount, which satisfied the insurer’s obligations. As such, the claimant’s failure to attend the April 18, 2017 IE triggered s. 55. Vice-Chair Flude did not consider the other two failures to attend, as both had been cancelled by the insurer for various reasons. Vice-Chair Flude opined that while the claimant’s failure to attend the IE may be sufficient to strike the claim, she had advanced her claim vigorously since then and had been accepted as CAT. The claimant also expressed a willingness to attend the IE in order to advance the claim. As such, Vice-Chair Flude opted not to issue an Order staying the Application until the claimant attended, but rather issued an Order for the parties to agree on a mutual date for IE attendance within 30 days, and for the IE to take place within 90 days. Should the parties not be able to agree to such dates, they were to submit three proposed each dates to Vice-Chair Flude, who would then decide the date. Should the claimant not attend the IE this time, the insurer would be allowed to request an Order staying the Application.

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.