Category: IE Non-Attendance

M.Y. v Wawanesa Mutual Insurance Company (19-003973)

The insurer brought this preliminary issue hearing arguing that the claimant was barred from disputing her entitlement to medical/rehabilitation benefits beyond the MIG and attendant care benefits on the grounds that she failed to attend two section 44 IEs. The claimant took the position that she was not required to attend the IEs because the first IE was for the purposes of determining the applicability of the MIG, which is not permitted, and the second IE was scheduled as a substitute for the submitted Form 1. With respect to the first IE, Vice Chair Farlam held that scheduling an IE to address doubt about whether the claimant’s injuries fall outside the MIG does not violate the SABS. With respect to the second IE, Vice Chair Farlam found that the insurer was merely exercising its right under the SABS to assess the claimant as part of determining whether the claimant was entitled to attendant care benefits. As such, Vice Chair Farlam concluded that the claimant was barred from proceeding with her application, noting that counsel’s position that the claimant was not obligated to attend either IE was incorrect and that an erroneous legal position was not a reasonable explanation for non-attendance at IEs.

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

The claimant sought a determination that he sustained a catastrophic impairment, and entitlement to IRBs and various medical expenses. The insurer argued that the claimant was barred from proceeding with a catastrophic impairment determination until he attended a neurological IE, and also argued that the claimant was barred from proceeding with the claims for IRBs and medical benefits due to the limitation period. Adjudicator Boyce found that the insurer’s proposed IE was reasonably necessary for a determination of CAT and the request was timely, made in good faith, and appropriate. Therefore, Adjudicator Boyce concluded that the claimant was barred from proceeding with the CAT dispute until the he attended the IE. Secondly, Adjudicator Boyce found that the claimant’s delays of 130 and 334 days were unacceptable. The claimant failed to demonstrate why not extending the limitation would prejudice him or why the Tribunal should assign greater weight to this factor.

F.E. v. Intact Insurance Company (18-011405)

The claimant sought entitlement to IRBs, various medical benefits, and two assessments. The insurer brought motions for section 33 non-compliance for failure to provide records in the Case Conference Order, and a section 55 defence for IE non-attendance. Both motions were dismissed. Section 33 was not found to apply because the claimant’s breach was of the LAT Rules as opposed to a section 33 request. The section 55 defence was dismissed because of the insurer’s failure to provide notice of the issue. Adjudicator Paluch concluded that the claimant was not entitled to IRBs because he failed to provide evidence necessary to establish either a substantial or complete inability to perform the essential tasks of his employment, and there was evidence that he returned to work following the accident. The medical benefits and assessments were also dismissed due to the claimant’s lack of evidence and poor credibility.

A.U. v. TD Insurance Meloche Monnex (19-000276)

The claimant sought entitlement to the cost of a chronic pain assessment. The insurer argued that the claimant failed to attend an IE and was barred from disputing entitlement. The claimant argued that the denial was not sufficient under section 44, as there was no reference to medical records or having reviewed the treating practitioner’s opinion. Adjudicator Grant decided in favour of the insurer, noting that there is no specific requirement under section 44 that requires a direct reference to medical records or a review of the treating practitioners’ opinion on the matter. He also wrote that the claimant had in fact moved to Singapore, and that it would be difficult for the insurer to ascertain whether or not the treatment was reasonable and necessary without a medical opinion given the lack of activity on claim and lack of treatments for such an extended period of time.

F.A. v. Wawanesa Mutual Insurance Company (18-008453)

The claimant sought entitlement to IRBs. The insurer argued that the claimant failed to provide relevant records requested under section 33, including pre-accident income documentation, employment file, and post-accident income records. The insurer also argued that the claimant’s revocation of the right to conduct a paper IE was non-compliance with IE attendance. Adjudicator Chakravarti concluded that most of the insurer’s documentation requests were reasonable and that the claimant’s entitlement to IRBs was suspended in accordance with section 33. She also held that the claimant failed to participate in an IE by revoking consent for assessors to conduct a paper IE.

L.F. v. Aviva General Insurance Company (18-008308)

The claimant sought reconsideration of the Tribunal’s decision that she was barred from disputing entitlement to medical benefits because she failed to attend an IE assessment. Adjudicator Norris concluded that he did not commit an error in regard to the proper medical and other reasons for the insurer’s denial since the insurer’s letter noted that the proposed services were not consistent with the injuries report, and noted gaps in treatments without any clinical documentation to explain the same. He also found that there was no violation of procedural fairness as the claimant could attend the IE and re-apply to the LAT if the benefits remained denied.

K.B. v. Aviva General Insurance (18-011950)

The Tribunal addressed three preliminary issues in this decision: whether the claimant’s failure to attend an IE barred the dispute for a chronic pain assessment and IRBs, whether the claimant’s failure to submit documentation resulted in a section 33 suspension, and whether the insurer was entitled to repayment of IRBs. Adjudicator Norris held that failure to comply with section 33 did not bar the application, but could result in non-payment following the hearing on the merits. He also noted that failure to submit an OCF-2 was not fatal to an IRB claim and was not necessary for an application for IRBs. The claimant’s failure to attend an IE barred the dispute for a chronic pain assessment. It did not bar the IRB claim because the missed IE was not scheduled in relation to IRBs. The issue of repayment was deferred to the main hearing.

S.S. v. Unifund Assurance Company (18-010682)

The claimant sought a determination that her impairments were outside of the MIG, entitlement to medical benefits proposed in two physiotherapy treatment plans that had been partially approved, entitlement to IRBs which had been suspended for non-attendance of IEs, and a special award. Adjudicator Lester rejected the claims. She agreed with the insurer that the claimant’s injuries from a previous car accident had resolved prior to the subject accident and that the claimant had not exacerbated a previous condition to warrant removal from the MIG. Adjudicator Lester also found that the insurer’s notices of the IEs were compliant with the Schedule, and the claimant’s non-attendance of IEs disentitled her to IRBs.

Applicant v. Aviva General Insurance Company (19-002413)

This preliminary issue hearing was brought to determine whether the claimant was statute barred from proceeding with his claim for attendant care benefits on the ground that he failed to attend an Otolaryngologist IE requested under section 44 of the SABS. Adjudicator Chakravarti found that the insurer failed to provide “medical and other reasons” for the assessment, and thus did not provide the claimant with valid notice of the assessment. The adjudicator indicated that the reasons were boilerplate, and did not provide any connection between the requested Otolaryngologist assessment and the attendant care benefit. As such, the claimant was not in non-compliance with the SABS and was entitled to proceed with his claim.

R.B. vs. Aviva Insurance Company of Canada (18-011209/AABS)

The claimant was injured in an accident on February 2, 2017 and disputed his MIG status. The insurer argued that the claimant had failed to attend several IEs and was barred from proceeding to the LAT . Adjudicator Norris ruled in favour of the claimant as the insurer had failed to provide adequate medical or other reasons, and had failed to provide direct notice that one of the disputed plans was being addressed at the assessment.