Category: IE Non-Attendance

A.B. v. The Co-Operators Insurance Company (19-004401)

The claimant applied to the LAT seeking entitlement to benefits after being involved in an automobile accident in 2016. The insurer raised two preliminary issues: 1) Was the claimant statue-barred from proceeding with a claim for NEBs for failure to commence the application within the two year limitation period; and 2) Was the claimant entitled to medical benefits after non-compliance with s. 44 of the Schedule for failing to attend an IE assessment? Adjudicator Grant found that the claim was statute barred and the claimant was not entitled to dispute any of the 2017 treatment plans. He rejected the argument that the limitation period did not commence until IEs were received by the claimant, because there had been a denial upon submission of the treatment plans. Adjudicator Grant also found the that claimant was not entitled to NEBs due to non-compliance under s. 44. Adjudicator Grant was also asked to determine whether the claimant was entitled to 13 treatment plans, a special award and interest. In his decision, Adjudicator Grant highlighted that the onus is on the claimant to demonstrate that the disputed treatment plans are reasonable and necessary. In this case the claimant advanced medical evidence that was not consistent with the treatment being disputed. It was determined that the claimant failed to meet his burden, rendering the treatment plans not payable.

Hardy-MacDonald v. Wawanesa Mutual Insurance Company (20-005392)

The preliminary issue in this matter was whether the claimant was barred from commencing a proceeding because she failed to comply with Section 44 of the Schedule by not attending insurer’s examinations. Adjudicator McGee dismissed the application due to the claimant’s failure to attend the IEs. The claimant submitted that she was not required to attend the insurer’s examination because the requests were made improperly and in bad faith and were an abuse of process. Adjudicator McGee disagreed, stating that the insurer’s rationale followed the precedent set in M.B. v. Aviva Insurance Canada, using straightforward language capable of enabling an unsophisticated person to determine whether to accept or refuse the request, and outlining the information the insurer did not have about the claimant’s condition. Further, Adjudicator McGee stated that nothing in the Schedule requires an insurer to accept at face value the medical documentation an insured person provides in support of a claim. Section 44 establishes a broad right to request Insurer’s Examinations by a regulated health professional of the insurer’s choosing.

Strickland v. Economical Insurance (20-001811)

The claimant disputed entitlement to various medical benefits. The insurer argued that the dispute was barred due to the claimant’s IE non-attendance. Adjudicator Chakravarti held that the dispute could proceed because the IE notice was not in accordance with section 44. The denial of benefits was generic and did not explain why benefits outside the MIG were not being approved. The notice simply stated that the MIG applied, without reasons why the insurer believed the MIG applied. The IE notice contained the same deficient language, and made no mention of the injuries or medical reasons for the IE.

E.L. v. Wawanesa Mutual Insurance Company (19-003212)

The claimant sought reconsideration of the Tribunal’s decision that his IE non-attendance barred the LAT dispute. Adjudicator Makhamra dismissed the reconsideration, holding that the Tribunal properly considered whether the claimant was barred by section 55 from disputing the MIG and the disputed treatment plan. However, Adjudicator Makhamra noted that the decision did not bar the claimant from submitting treatment plans in the future and disputing entitlement to same if the insurer refused to approve the treatment plans, and subject to IE requests in relation to any future treatment plans.

Silvera v. Aviva General Insurance (20-000483)

The claimant sought entitlement to NEBs and medical benefits; the insurer required the claimant to attend s. 44 insurer’s examinations. The claimant did not attend the IEs and submitted an application to the LAT. The insurer requested a preliminary issue hearing and Adjudicator Farlam found that the claimant was barred from proceeding with her application because she failed to attend s. 44 IEs. The Schedule provides that the onus is on the claimant to put forward a reasonable explanation for non-attendance at an IE. In this case, the claimant failed to attend six s. 44 assessments. The claimant submitted that one was missed due to attending the death of a family member and that another was because the claimant was out of the country, but the claimant did not submit any evidence to establish either of these facts. Further, the claimant failed to offer any persuasive evidence in support of their submissions that the insurer was not prejudiced by the failure to attend the IEs. The Adjudicator accepted the insurer’s submission that it was prejudiced by the passage of time and it had now been deprived of the opportunity to have it’s physicians reasonably assess whether the claimant would meet the eligibility test for NEBs and also whether the disputed treatment plans were reasonable and necessary.

Wangden v. Economical Insurance (19-010637)

The claimant disputed entitlement to the MIG, NEBs, and various medical benefits. The claimant argued that they were entitled to payment of NEBs due to Economical’s failure to comply with the timeline under section 36(4). The insurer argued that the claimant was barred from litigating NEBs for failure to attend a scheduled IE to address the benefit. Adjudicator Mazerolle ruled that the claimant was not entitled to automatic payment of NEBs as the insurer had made a valid request under section 33 for a completed OCF-10 within 10 business days of receiving the OCF-1 and OCF-3, which extended the time to respond under section 36(4). In relation to the section 55 issue, the claimant argued that the insurer’s notice letter for the IE did not contain suitable “medical and other reasons” as set out in M.B. v Aviva. The insurer argued that the notice was the same as all other notices provided to the claimant over the course of the claim, yet there was only the one IE the claimant failed to attend. Adjudicator Mazerolle ruled in favour of the claimant, noting that the notice provided was insufficient as well as confusing to an “unsophisticated reader”. Adjudicator Mazerolle noted that even though the claimant did attend other assessments with similar notices, this did not affect the insurer’s responsibility to provide a proper notice. As such, the claimant was allowed to proceed with his claim for NEBs.

Harvey v. TD Insurance Meloche Monnex (19-008497)

The claimant applied to the LAT seeking entitlement to incurred ACBs, occupational therapy, and a special award. The insurer raised two preliminary issues: 1) Did the LAT have jurisdiction to adjudicate the ACB issue as the benefit had been suspended for non-compliance with s. 33 requests rather than denied; and 2) Was the claimant barred from pursuing entitlement to ACBs pursuant to s. 55 for failure to attend an IE assessment? Adjudicator Victor found that the LAT had jurisdiction over the ACB dispute and the claimant was not barred from pursuing entitlement to the benefit pursuant to s. 55 because the notice of assessment was deficient for failure to provide specific medical and other reasons. Adjudicator Victor found that the claimant was entitled to all the benefits in dispute and granted a special award in relation to the claim for ACBs. The special award was justified because payment of ACBs was stopped while catastrophic impairment IEs were scheduled, despite section 45(4) which required ongoing ACBs until the IEs were completed. The insurer also used the COVID-19 delays in scheduling the IEs to its advantage by not paying ACBs while IEs were rescheduled.

Cura v. Aviva Insurance Canada (2021 ONSC 2290)

The claimant sought judicial review of the Tribunal’s decision that her withdrawal of consent for the IE facility to possess her personal information amounted to IE non-attendance. The claimant’s reconsideration request had been dismissed as pre-mature. The Divisional Court dismissed the review, holding that it was premature. Parties are not to appeal or seek judicial review of a Tribunal decision until the matter has been finally decided by the Tribunal. The Court was critical of the claimant’s representatives, who had brought similar proceedings and putting up roadblocks to prevent IEs from taking place.

K.W. v. Intact Insurance Company (19-003168)

The claimant sought entitlement to benefits and the parties attended a case conference where the insurer raised the preliminary issue of whether the claimant was statute barred from proceeding with her claim for the non-earner benefit and assistive devices pursuant to section 55 of the Schedule because the claimant failed to attend the insurer’s section 44 IE requests. Vice Chair Johal concluded that the claimant was barred by virtue of section 55 from proceeding with her claim for non-earner benefits and assistive devices as a result of the non-attendance with the insurer’s section 44 IE requests. Vice Chair Johal found that the insurer made reasonably necessary requests for IE examinations and the claimant did not attend and did not provide a reasonable explanation for her non-attendance. With respect to the IE notices, the insurer was found in compliance with the Schedule as each notice set out (1) the medical and other reasons for the assessment, (2) the name of the assessor, (3) the profession of the assessor, and (4) the date, time and location of the assessment that the claimant was required to attend. The claimant failed to address the insurer’s submissions of her failure to attend the IE assessment.

G.W.R. v. Commonwell Mutual Insurance (19-002647)

The claimant applied to the LAT disputing entitlement to four treatment plans. The insurer raised a preliminary issue that the disputed treatment plans were barred from litigation under section 55 of the SABS due to the claimant’s failure to attend section 44 IE assessments to address the disputed issues without a reasonable explanation. In response, the claimant alleged that one of the assessors did not show up for the scheduled IE to address one of the disputed plans. She further pleaded that the IEs were not reasonable or necessary as she had already attended a total of eight IEs since the onset of the claim. Lastly, that she withdrew her claim for one of the treatment plans, and argued that the non-attendance would not apply. Vice-Chair Farlam ruled that the claimant was barred from proceeding with her application due to non-compliance with section 44 of the SABS. She noted that, although the claimant had attended multiple IEs in the past, the insurer had approved the majority of similar treatments up to the time the IE notices were sent, and the insurer was entitled to a medical opinion to address the same. Furthermore, six of the IEs referenced occurred in 2016 and were not current opinions. The Vice Chair noted that by failing to attend a reasonable and necessary examination, the claimant had prejudiced the insurer. Finally, she also noted that, while the claimant alleged one of the assessors did not show up for the scheduled assessment, she had provided no evidence to support her claim; meanwhile the insurer provided letters rescheduling the assessment and notifying the claimant of the consequences of non-attendance.