Category: IE Non-Attendance

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.

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.