Category: IE Non-Attendance

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

The insurer argued that the claimant could not proceed with a LAT hearing because of his failure to attend an IE. The claimant argued that the IE notice was deficient and that the IE request was not reasonable. Adjudicator Punyarthi held that the IE request was reasonable and that the insurer was not required to provide a copy of the contract or retainer between it and the IE facility, or prove which records were given to the IE facility. The request for an IE was also reasonable as the last prior IEs had been performed two years prior and the insurer had to determine whether the MIG still applied to the claimant’s injuries. The adjudicator held that a paper review would not have been sufficient for the insurer at the time the IE was requested, and the insurer would have been prejudiced if a hearing were to proceed. Finally, Adjudicator Punyarthi rejected the claimant’s position that the Tribunal had the authority to reprimand the insurer for a breach of PIPEDA or for an alleged breach of the duty of good faith.

L.P. v. Aviva General Insurance (19-012718)

The claimant sought entitlement to NEBs, removal from the MIG, and various medical benefits. The insurer argued that the claimant’s failure to attend IEs barred her right to proceed with a hearing. Adjudicator Farlam agreed with the insurer and dismissed the application. The insurer had requested IEs to address the claims, and the claimant did not attend any of the IEs (including rescheduled IEs). The IE notices complied with section 44, and the medical and other reasons for the IEs were provided. The claimant did not have a reasonable explanation for not attending the IEs. Over three years had passed since the IEs had been requested, and the insurer was now prejudiced in its adjusting of the claim even if the claimant were to attend new IEs. The LAT application was dismissed.

L.C. v. Aviva Insurance Canada (18-008289)

The claimant attended IEs addressing her determination of a catastrophic impairment, but refused to allow the IE facility to release the assessment reports, arguing that the insurer’s use of a third party to conduct the assessments violated her privacy rights and Charter rights. Adjudicator Norris held that the claimant’s refusal to allow the IE facility to release its reports to the insurer was tantamount to refusal to participate in the IE process. He stayed the proceeding until the claimant participated in the IE process and permitted the IE reports to be released. He also held that the insurer was permitted to use a third party entity to conduct the IEs, and there was no reason why the disclosure of the claimant’s medical records to the IE facility was unlawful.

C.P. v. Aviva General Insurance (19-002331)

The claimant applied to the LAT seeking entitlement to a chronic pain assessment and physiotherapy treatment. The insurer sought a determination that the claimant was barred from proceeding to the LAT on the basis that she failed to attend s. 44 assessments. Adjudicator Grant found that the claimant failed to attend s. 44 assessments on five separate occasions, and there was no evidence to explain the non-compliance. The claimant was barred from proceeding to the LAT pursuant to s. 55 of the SABS.

Applicant v. TD Insurance Meloche Monnex (19-006032)

The claimant sought non-earner benefits, a special award and interest. The insurer raised a preliminary issue to determine whether the claimant was precluded from proceeding with her application as she failed to attend a s.44 IE. The insurer also sought costs of the failed IE attendance. The claimant argued that the insurer did not provide sufficient notice of the IE and the IE was not reasonably necessary given the OCF-3 was provided. In addition, the claimant maintained that the insurer did not provide sufficient explanation for the denial of her non-earner benefit and did not disclose its “medical reasons”. The adjudicator found that the claimant was barred from proceeding with her application for failure to attend the IE without reasonable explanation. The adjudicator indicated that the claimant’s argument that she demonstrated entitlement to non-earner benefits and her entitlement for some or all of the time since the accident was irrelevant to the preliminary issue. The evidence did not support the claimant’s argument that the explanations and notice of the IE were unclear and did not disclose sufficient reasons. The application was dismissed, but no costs were awarded to the insurer.

R.S. v Pafco Insurance Company (19-006331)

The claimant sought catastrophic determination as a result of his accident-related injuries, and underwent assessments in preparing his OCF-19. After receiving the claimant’s CAT Application, the insurer requested that the claimant attend various IEs in order to assess him for CAT. The claimant refused to attend the neuropsychological IE, arguing that it was not reasonably necessary to determine CAT. The insurer raised a preliminary issue to determine whether the claimant was barred from proceeding with his CAT Application, and further raised a second preliminary issue to determine whether the claimant is barred from proceeding with the remaining issues in his application (medical benefits and IRBs) as he disputed these denials past the two year limitation period. Adjudicator Boyce held that the claimant was barred from proceeding with his CAT Application until he attends the neuropsychological IE, finding that there was a reasonable connection between the requested IE and the alleged impairments given the claimant’s reported headaches and post-concussion syndrome. He further held that the claimant was barred from proceeding with the remaining issues in dispute, as he failed to appeal the insurer’s denials within the limitation period. Notably, Adjudicator Boyce declined to apply the decision in Tomec, finding that the discoverability rule did not apply to IRBs and that an insured’s loss is crystallized upon receipt of a notice of termination, and further declined to apply section 7 of the LAT Act to extend the limitation period.

L.D. v. Gore Mutual Insurance Company (18-011978)

The claimant sought reconsideration of the Tribunal’s Case Conference order that a preliminary issue hearing take place to address the IE non-attendance issue, and of the Case Conference adjudicator’s refusal to “strike” the issue, arguing that the adjudicator was biased. Vice Chair Jovanovich dismissed the reconsideration request because it was not a final order. Rather, it was a procedural order made under the Tribunal’s Rules.

L.D. v. Gore Mutual Insurance Company (18-011978)

The claimant sought reconsideration of the Tribunal’s Case Conference order that a preliminary issue hearing take place to address the IE non-attendance issue, and of the Case Conference adjudicator’s refusal to “strike” the issue, arguing that the adjudicator was biased. Vice Chair Jovanovich dismissed the reconsideration request because it was not a final order. Rather, it was a procedural order made under the Tribunal’s Rules.

Y.M. v Security National Insurance Company (19-001141)

The claimant sought removal from the MIG, and entitlement to various medical benefits. The insurer argued that the claimant was barred from disputing the claimed benefits due to the limitation period and due to failure to attend an IE. Adjudicator Grant agreed that two of the disputed medical benefits were barred by the limitation period, and that the claimant failed to attend a scheduled IE without reasonable explanation. Finally, he concluded that the claimant’s injuries fell within the MIG.

U.P. v. Co-operators General Insurance Company (19-001881)

The claimant sought entitlement to one treatment plan and removal from the MIG. The insurer argued that section 55 barred the claim because the claimant failed to attend a physiatry IE. The claimant did not dispute the contents of the notice, but argued that she had not received it. Adjudicator Reilly accepted that the claimant did not receive the notice and that her counsel did not inform her of the IE. However, the adjudicator exercised its discretion to allow the insurer to reschedule the IE, and ordered the claimant to attend.