The claimant sustained a CAT impairment and sought ACBs from the insurer. The insurer initially provided ACBs at $6,000 per month, but benefits were reduced to $4,339.71 and later cut to $1,040.10, based on the determination that she no longer required basic supervisory care and mobility assistance. The claimant disputed these reductions. The LAT ruled that the claimant was entitled to ACBs at $1,630.72 per month and interest on overdue payments . A few procedural issues were raised. The claimant argued that the s. 44 IE report and Form 1 should be excluded as the insurer’s correspondence and examination notice were not compliant with sections 19, 42 or 44 (5) of the SABS. The claimant asserted that the notice to assess did not include a medical reason for the IE request distinct from the non-earner benefit. As such, the claimant contended that the deficient notice should lead to the exclusion of the report. The LAT held that the SABS does not provide for the exclusion of an IE report as a remedy for non-compliance with s. 44(5) and that the LAT could not read such a remedy into the SABS. Furthermore, the LAT found that a claimant’s attendance at an IE constitutes a waiver of any recourse he/she may have had against the insurer for providing a deficient notice. Accordingly, the LAT stated that it is incumbent upon claimants to seek clarity regarding the medical reasons for an assessment before consenting to participate. Given the claimant’s failure to seek clarification with the insurer and her ultimate participation in the IE, the LAT decided that the corresponding IE report and Form 1 should be allowed. Addressing a second procedural issue, the LAT allowed the claimant to add a special award but found that non-compliance with notice requirements did not meet the threshold for a special award. The LAT held that: (a) deficient notices can only be addressed when they occur/prior to participation in the IE they correspond to and (b) assigning a remedy for a deficient notice would be akin to reading a remedy into the SABS where none exists. The claim for a special award was denied.
