Category: IE Non-Attendance

F.S. v. Unica Insurance Inc. (19-001537)

The claimant sought various accident benefits, including post-104 IRBs. The insurer denied benefits based upon its MIG position. During the course of the claim, the insurer scheduled numerous IEs to determine the MIG and various benefits in dispute, which the claimant did not attend. Following the case conference, with agreement from claimant’s counsel, the insurer rescheduled two of the IEs; the claimant again did not attend. The claimant alleged he had been evicted from his home. At the time of the preliminary issue hearing, the claimant had failed to attend a total of 9 IEs. Adjudicator Boyce ruled that the claimant could proceed with the disputes regarding the MIG, the cost of a chronic pain assessment OCF-18 and the cost of chiropractic treatments as he attended the related IEs. He was barred from proceeding from the remainder of the claim, including IRBs due to failure to attend the relevant IEs.

J.C. v. Western Assurance Company (18-009726)

The claimant requested reconsideration of the Tribunal’s previous decision which precluded her from proceeding to a hearing on IRBs for failure to attend IEs. IRBs were terminated based on orthopaedic and occupational therapy IE reports. The claimant provided the insurer with further medical documentation, and in turn, the insurer arranged for further IE reports to address the new information. The claimant refused to attend, arguing that the medical documents themselves were enough information to determine entitlement. The insurer placed the claimant in non-compliance. The claimant then applied to the LAT to determine IRB entitlement. Vice Chair Lester denied the request for reconsideration, noting that the claimant gave no specific examples of errors in law with regard to her alleged compliance with the IE requests.

Applicant v Economical Insurance Company (18-008443)

The insurer brought a preliminary issue hearing on the grounds that the claimant was barred from proceeding with her application for catastrophic determination and post-104 IRBs for failure to attend section 44 IEs. Adjudicator Boyce agreed with the insurer, and found that the claimant was barred from proceeding with her application. The insurer had a right to a full answer and defence where a claim for catastrophic impairment had been made, and was entitled to be on equal evidentiary footing with the claimant. The claimant’s non-attendance at properly scheduled section 44 IEs frustrated the insurer’s right.

J.F. v. Aviva General Insurance Company (18-012511)

The insurer brought a preliminary issue hearing on the grounds that the claimant was barred from commencing a proceeding for failure to attend NEB IEs. The insurer made several attempts to schedule NEB IEs, in response to which the claimant asked for the IEs to be rescheduled. The IEs were ultimately scheduled to take place shortly after the LAT case conference, and the claimant failed to attend. The claimant took the position that it was unreasonable to conduct IEs so closely after a case conference and she should be exempt from attending the IE. Adjudicator Norris disagreed, noting that there was no legislative or precedential basis for the claimant’s position. As such, the adjudicator found that the claimant was barred from disputing her entitlement to NEBs, but could proceed with her claim for entitlement to medical benefits.

N.L. v. Aviva Insurance Company (18-011431)

The claimant applied to the LAT seeking entitlement to chiropractic treatment, a psychological assessment, and an orthopaedic assessment. The insurer raised the preliminary issue of whether the claimant was barred from proceeding with her claim for the psychological assessment as she failed to submit to an insurer’s examination. Adjudicator Maleki-Yazdi found, pursuant to s. 55 of the SABS, that the claimant was barred from applying to the LAT for all of the benefits in dispute for failure to attend the IE psychology assessment, until such time as the claimant attended the assessment.

J.P. v. Royal Sun Alliance (18-006654)

The insurer sought a determination that the claimant was barred from proceeding to the LAT on the basis that he failed to attend insurer’s CAT assessments. The claimant took the position that he was not required to attend the assessments as the insurer failed to set out the medical and other reasons for requiring the assessments, as required by s. 45(3) and 44(5) of the SABS. Adjudicator Gosio found that the insurer did not adequately explain its position with reference to the claimant’s medical condition, and that the claimant was not barred from proceeding with his application to the LAT.

S.S.R. v. Unifund Assurance Company (18-004772)

The insurer sought reconsideration of the Tribunal’s award of NEBs and medical benefits, and that section 55 did not prevent the claimant from disputing entitlement to the medical benefits. Vice Chair Lester granted the reconsideration in relation to NEBs, but only in ordering that NEB entitlement began six months after the accident as opposed to four weeks, since the claim was under a transitional policy. The reconsideration was dismissed in relation to entitlement to benefits because no error in law was identified by the insurer and the findings of fact were permissible based on the evidence before the Tribunal. In terms of IE non-attendance, Vice Chair Lester noted that section 55 would only apply if the IEs in question were in relation to a disputed benefit. The notices of examination did not indicate which medical benefits were being addressed, so the Tribunal could not determine if section 55 applied.

W.C. v. Aviva Insurance Canada (19-000454)

The claimant sought entitlement to IRBs; the insurer argued that section 55 barred the dispute because the claimant failed to attend IEs. Adjudicator Punyarthi held that the insurer, rather than the claimant, failed to comply with section 44 by failing to make the IEs on a date, time, and location that was convenient to the claimant. Further, the claimant’s requests to reschedule the IEs were not responded to by the insurer. The IRB dispute was permitted to proceed.

C.L. v. TD Home and Auto Insurance Company (19-002670)

The claimant sought catastrophic injuries from an ATV accident. He applied to the LAT in relation to IRBs and HK expenses, which had been denied after the claimant returned to work. The insurer argued that the claimant was barred from proceeding with the dispute due to his failure to attend IEs. Adjudicator Boyce acknowledged that the IEs were only requested after the LAT application was made, but that the requests were timely, reasonable, made in good faith, and appropriate given that the insurer did not have any medical opinions regarding the disputed benefits. He also wrote that there was no prejudice to the claimant by attending the IEs (he may even be found entitled to the benefits). Finally, the alleged deterioration of the claimant’s condition warranted a thorough set of IEs.

S.R. v. Aviva Insurance Canada (17-008249)

The claimant sought reconsideration of the Tribunal’s decision that he was barred from pursuing his claim due to failure to attend an orthopaedic assessment. Vice Chair Marzinotto granted the reconsideration due to the failure of the insurer to note the IE assessor’s regulated health profession. It was the insurer’s obligation to provide that information, not the claimant’s job to investigate it. Vice Chair Marzinotto also ordered that because the insurer ceased payment of IRBs based on the IE non-attendance, which was improper, that IRBs were to be paid for the ten month suspension.