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.
