Category: IE Non-Attendance

The insurer sought to have this claimant’s application dismissed or stayed due to the claimant’s failure to attend an IE relating to the MIG and a treatment plan. The insurer had not performed an IE of the claimant in the four years that the claim had been active, and had been prejudiced by being unable to gather a medical opinion of the claimant’s post-accident functioning. The claimant argued that the IE notice had in fact been sent to her previous address, and that she was unaware of it due to the error. The claimant reported that she was willing to remedy the situation, and attend an IE at the insurer’s request. The claimant noted that it would unfair to dismiss her entire claim due to a single missed IE, especially when she was willing to remedy the situation. Vice Chair Maedel agreed to stay the application for 120 days while the insurer scheduled a physiatry IE. The motion to dismiss the application was rejected, as it would be unduly prejudicial and contrary to the rules of fairness.

The preliminary issue in this matter is whether the claimant was barred from commencing a proceeding for certain medical benefits because she failed to comply with s. 44 of the Schedule by not attending an insurer’s examination. The claimant submitted an OCF-6 for cannabis prescription expenses and the insurer denied the expense pending a s. 44 examination to determine if the OCF-6 was reasonable and necessary. The claimant failed to attend the assessment and argued that it wasn’t a reasonable request, and the notice given wasn’t proper. Adjudicator Kepman agreed with the insurer that s. 44(3) of the Schedule allows insurers to determine benefits, including prescription medication, via a s. 44 examination. If the legislature intended to exclude prescription drugs, they would have included language to make this clear. Further, Adjudicator Kepman found that the insurer’s reasons for the examination were proper, namely to determine if the OCF-6 was reasonable and necessary due to a lack of medical documentation. Finally, Adjudicator Kepman found that the assessment was reasonable as the claimant had failed to provide the requested information under s. 33 and therefore a s. 44 assessment was required. Adjudicator Kepman concluded that the claimant was barred from commencing a proceeding as a result of s. 44.

The preliminary issue in this matter is whether the claimant was barred from commencing a proceeding for IRBs because he failed to comply with s. 44 of the Schedule by not attending an insurer’s examination. The insurer submitted that the claimant should be statute-barred from proceeding with his application for failing to provide a reasonable explanation for not attending the properly scheduled s. 44 IE under s. 37(8) of the Schedule. The claimant submitted that the insurer failed to make reasonable efforts to schedule the IE at a location that was convenient for the claimant and that he was forced to choose between his hockey career and his claim for an IRB. Adjudicator Scheltgen found that the claimant’s decision not to attend the IE was not a reasonable one, as it was the claimant’s choice to leave the country mere days before the scheduled IE that had already been rescheduled to accommodate his career. Finally, Adjudicator Scheltgen stated that the burden lies with the claimant to prove that his non-attendance at an IE was reasonable or, in the alternative, that an IE was not reasonably necessary. Adjudicator Scheltgen concluded that the IE request was reasonable and that its notices were proper under the Schedule. As a result, the claimant was barred from proceeding with his IRB claim as a result of s. 44.

The preliminary issue in this matter is whether the claimant was barred from proceeding with his claims because he failed to comply with s. 44 of the Schedule by not attending properly scheduled IEs. The claimant argued that the insurer arranging IEs to address whether the claims were reasonable and necessary was inconsistent with the previous version of the Schedule. Adjudicator Boyce found that the 1996 SABS had no applicability as the accident occurred on August 13, 2016. The Tribunal could not read in language from an old regulation simply because it would assist the claimant. Adjudicator Boyce also found that the notices were proper as they provided the type of IE, the location, date, time, and the assessor’s name and credentials. The notices also included sufficient medical and other reasons as there was a significant gap in the medical documentation provided at the time of the requested assessments. Finally, the IEs requested were found reasonable and necessary as there was no delay, there was a reasonable nexus between the IEs and the claimant’s impairments, they were the first OCF-18s of their kind, and, as previously stated, there was a gap in the medical documentation. As a result, Adjudicator Boyce concluded that the claimant was statute-barred from proceeding with his claim.

Intact requested a preliminary issue hearing as the claimant failed to attend insurer examinations. Intact requested that two issues for medical benefits be barred from dispute pursuant to section 55. The claimant was involved in two accidents which were joined into a single matter for the purpose of the preliminary issues hearing. The two disputed treatment plans were for medical cannabis, which the claimant said was required for low back pain, and a second treatment plan for a stress therapy reduction system and shiatsu massage chair, which the claimant said would reduce the need for pain medication and increase stamina, motivation and social and recreational activities. The claimant stated that he did not attend the assessments because: the IE assessors did not have an expertise in cannabis therapy; the claimant was only able to attend an assessment on a Saturday or Sunday at 2:00 PM; the claimant demanded to record his assessment; the claimant demanded to bring his own chaperone into the assessment with him, and the claimant demanded that he would be able to conduct his own section 25 assessment in response to the section 44 assessment. The claimant requested that an Order enforcing the conditions of his attendance at the IEs. Vice-Chair Johal ruled in Intact’s favour, noting that specific medical and other reasons for the denials and IEs were given in accordance with M.B. v. Aviva, and that Intact contacted the claimant and offered alternative accommodations and attempted to reschedule the assessments. Vice-Chair Johal noted that, as in J.C. v. Aviva, as long as there was sufficient medical and other reasons and the IE was reasonable and necessary, the claimant would be required to attend. The assessments proposed by Intact were considered reasonable and necessary and the claimant was barred from disputing the medical benefits until he attended the IEs. Vice-Chair Johal further noted that it was not within the Tribunal’s power to Order the insurer to allow the claimant to video record his IEs.

A preliminary issue hearing was held to determine whether the claimant was barred from proceeding with her claim for NEBs and medical benefits after failure to submit to an insurer’s examination under section 44 of the SABs. The claimant submitted an OCF3 supporting an entitlement to NEBs but containing no medical evidence. The insurer requested that the claimant attend physiatry and in-home OT assessments to determine her entitlement to benefits. The claimant failed to attend the assessments on numerous occasions. The insurer argued that where the OCF3 supported NEB entitlement but contained limited medical evidence, a request for the claimant to attend a section 44 examination was reasonable. The insurer further submitted that there would be no prejudice to the claimant through attendance at the examinations as she had only been examined once in the 3.5 years after the accident. Vice Chair Boyce agreed with the insurer and concluded that the claimant was statute barred under section 55 of the SABs from proceeding with her claim.