Category: IE Non-Attendance

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.

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.

The claimant applied to the LAT disputing entitlement to NEBs, physiotherapy services, a chronic pain assessment and MIG determination and a special award. The insurer a preliminary issue that the claimant was barred from litigating his entitlement to NEBs for failure to attend an IE to address the benefit. Belair also sought costs. Adjudicator Chakravarti noted that the claimant failed to attend the scheduled IE on two occasions, both without reasonable explanation; furthermore, he failed to attend the Case Conference. In his written materials, the claimant withdrew his claims for physiotherapy, a chronic pain assessment and a MIG determination, leaving only a claim for NEBs and a special award in dispute. The claimant argued that his non-attendance was “”due to inadvertence”” and was not intentional, but he did not submit a reasonable explanation or provide evidence as to why this occurred twice. Secondly, the claimant argued that the IE was not reasonable or necessary as the insurer had already complete an OT report and a psychology paper review in regard to NEBs, and thus there was no prejudice to the insurer for non-attendance. Adjudicator Chakravarti ruled in the insurer’s favour, noting that lack of prejudice to the insurer is not an excuse for non-compliance with section 44 of the SABS. Adjudicator Chakravarti rejected the claimant’s request to allow him to stay the proceeding and allow him to attend the examination, noting the claimant’s past pattern of behaviour, lack of reasonable explanation and lack of assurance that he would attend, left the parties in the same position as they had started. The claimant was barred from pursuing entitlement to NEBs.

The claimant applied to the LAT disputing entitlement to a treatment and assessment plan for chiropractic treatment. The insurer denied the plan and requested the claimant attend an IE, noting the plan had been submitted four years post-accident and no additional medical documentation had been provided. The claimant attended the IE, but refused to sign the consent form provided to her by the facility without first having her counsel read the document. The IE was cancelled and correspondence between the parties was exchanged over several months regarding the consent form. The insurer agreed to provide a copy of the form to the claimant and her counsel, and requested five dates which would be convenient to reschedule the IE. The claimant eventually returned the form with a significant portion of it crossed off. She also refused to produce photo ID for the purpose of the assessment. The insurer agreed to the changes to the consent, with the exception of photo ID, noting the importance of the same as otherwise there was no way to verify her identity. The insurer then rescheduled the IE to one of the agreeable dates. The claimant refused to attend and her benefits were suspended. The insurer rescheduled the IE again, and once again the claimant did not attend, nor did she respond to the insurer’s letters. The claimant then applied to the LAT. Vice-Chair Boyce ruled that the claimant was barred from litigating the disputed treatment plan. He noted that the requirement of the insurer to require that the claimant checks the box indicating photo ID was provided, and to provide the same to confirm her identify was entirely reasonable. Furthermore, the insurer not only showed willingness to accept the modified form with numerous changes by the claimant, but attempted to reschedule the assessment as well. Lastly, he noted that while a claimant has the right to dispute the insurer’s request for a signed consent form, the claimant was not exempt from their obligations under section 44 of the SABS.

The claimant disputed a catastrophic impairment designation. The insurer argued that the claimant failed to attend IEs, and that he was barred from proceeding with the LAT dispute. Adjudicator Lake dismissed the preliminary issue, holding that the insurer failed to prove the claimant failed to attend IEs. According to the documentary record, the claimant did attend the IEs, but the reports had not yet been provided to the insurer. Further, there was no evidence that the claimant failed to comply with obligations under section 44 regarding requests for documentation. Adjudicator Lake also noted that documentation requests made under section 44 could only be made after the IEs were scheduled, reiterating that section 44(9) required production of such documentation no later than 5 days before the IE.

The claimant sought entitlement to IRBs. The claimant had failed to attend IEs, and the insurer argued that the claimant could not proceed with the LAT dispute. The claimant argued that the insurer supplied boilerplate statements which failed to give meaningful notice. Vice Chair McGee concluded that the operative part of the court’s holding in Hedley v. Aviva (that mere boilerplate statements do not provide a principled rationale to which an insured can respond, and therefore constitute no reasons at all) was that reasons must provide a principled rationale to which an insured can respond. To the extent that boilerplate language can effectively communicate the basis of the insurer’s decision and provide a principled basis for an insured person to challenge the denial of a benefit or decide whether to attend an IE, that language may be sufficient to meet the requirements for reasons under the Schedule. Vice Chair McGee held that the claimant was barred from commencing a proceeding before this Tribunal because she failed to attend an IE that the insurer properly requested under section 44 of the Schedule. Vice Chair McGee found that the “medical and any other reasons” the insurer cited in the Notice of Examination set out a principled rationale based fairly on the claimant’s file.