Category: IE Non-Attendance

Yousuf v. Waterloo Insurance (20-011053)

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.

Joaquim v. Intact Insurance Company (20-011042)

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.

Scheltgen v. TD Insurance Meloche Monnex (20-010604)

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.

Shen v. Aviva General Insurance Company (20-000662)

The claimant applied to the LAT seeking entitlement to NEBs and chiropractic services proposed in one OCF-18. Pursuant to section 36(4) of the SABS, the claimant argued that the insurer was required to pay for NEBs as a result of a failure to reply to an OCF-3 within 10 days and a failure to provide adequate medical and other reasons why it determined the claimant was not entitled to NEBs. Alternatively, the claimant argued that NEBs were payable as a result of failure to provide s. 44 reports within 10 days of receipt of the reports, as required by section 36(7) of the SABS. The insurer argued that the claimant failed to comply with section 33 requests for medical records and was not entitled to any amount for NEBs. Adjudicator Grant found that the claimant was in non-compliance with section 33, having failed to comply with all reasonable section 33 requests up to the time of the hearing, and was not entitled to payment of NEBs. Adjudicator Grant also found that the section 33 requests were made in compliance with section 36(4) of the SABS. Adjudicator Grant further found that the medical and other reasons in the s. 44 notice of examination were sufficient and the claimant failed to provide compelling evidence that the insurer was required to pay NEBs for any period of alleged s. 44 non-compliance. It was noted that the claimant attended all of the s. 44 assessments, and if there was an issue with reasons for the examination, she could have requested further information from the insurer prior to attending. The claimant was also found not to meet the complete inability test for NEBS. The claim for NEBs was dismissed, but the claimant was entitled to the chiropractic treatment.

Perrigard v. Primmum Insurance Company (19-010651)

The claimant applied to the LAT disputing entitlement to IRBs and a medical benefit. The insurer brought a preliminary motion arguing that the claimant was barred from proceeding with the dispute as he applied to the LAT more than two years after the denials. Adjudicator Boyce agreed with the insurer and dismissed the claimant’s medical benefits dispute. With respect to IRBs, the claimant had argued that the insurer’s denial letter did not comply with section 37 as it did not include medical and other reasons. Adjudicator Boyce disagreed and noted that when an insured returns to work, an insurer was not required to fabricate a medical reason for stopping an IRB, as the medical reason is the return to work. With respect to the disputed medical benefit, Adjudicator Boyce found the insurer’s denial letter to be clear and it provided medical reasons, being that the claimant was discharged from treatment. The insurer also argued that the claimant was barred from applying to the LAT disputing IRBs pursuant to s. 55. Adjudicator Boyce noted that the insurer’s s. 44 notices complied with the SABS and there was correspondence indicating that the claimant was fully aware of the IEs but chose not to attend. Adjudicator Boyce dismissed the claimant’s IRB claim based on s. 55 as well.

Boileau v. Aviva Gen. Ins. Co. (20-005804)

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.

Carter v. Aviva Insurance Company of Canada (19-013446)

The insurer filed a Notice of Motion seeking to stay the claimant’s application, alleging that the claimant failed to participate in a neuropsychological insurer’s examination meant to assess his entitlement to IRBs. The insurer’s request for a neuropsychological assessment was made after the claimant submitted his own neuropsychological assessment. The insurer corresponded with the claimant’s counsel regarding its request, but no formal IE notice was ever delivered to the claimant. Nevertheless, the insurer argued that the claimant could not proceed with his application until he attended the assessment. Section 55(1) of the Schedule disallows claimants from pursuing his claim for a benefit if he did not attend a properly scheduled and reasonably necessary examination. Section 55(2), however, states that the insurer is required to provide the claimant with notice in accordance with Section 44. Adjudicator Mazerolle concluded that the insurer could not request a stay of proceedings under s. 55(1) because it did not deliver a compliant notice to the claimant. As a result, Adjudicator Mazerolle dismissed the request for a stay.

Tipping v. Coseco Insurance Company (2021 ONSC 5295)

The claimant sought judicial review of the Tribunal’s decision that he failed to attend properly requested IEs and that he could not proceed with his dispute relating to a catastrophic impairment. The Court dismissed the judicial review, holding that the claimant ought to have pursued a statutory right of appeal under the Insurance Act, and holding that there were no exceptional circumstances warranting the Court’s interference by way of judicial review. The Court noted that the claimant’s allegations of bias, lack of procedural fairness, and lack of natural justice were all questions of law, which could be addressed on a statutory appeal (though the Court went on to say that these claims seemed to have little meri, noting that strong disagreement with a decision was not sufficient to justify a finding of reasonable apprehension of bias). Finally, the Court noted that the LAT’s decision might not be a final decision, as the claimant could attend the IEs and then proceed with his LAT dispute.

Spiegel v. Intact Insurance Company (20-000279 & 20-000408)

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.

Hamad v. Travelers Insurance (19-014581)

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.