The insurer raised a preliminary issue and argued that the claimant was barred from applying to the LAT for failure under s. 55 and s.44 of the SABS to cooperate with an IE assessor. Secondly, the insurer argued that the claimant did not suffer a complete inability to carry on a normal life. The claimant argued that she “became ill or unwell” during the assessment and was unable to participate, and that she did suffer a complete inability to carry on a normal life. The insurer had arranged for an occupational therapy IE to address NEBs. When the OT arrived at the claimant’s resident, she was informed that the claimant was not home. After several unsuccessful attempts to ascertain where the claimant was, the OT was able to speak to the claimant by cell phone and was informed that the claimant and her husband “were driving back from Wasaga Beach and stuck in traffic”. The assessment proceeded, although later than scheduled and was modified to a joint assessment with the claimant and her husband, rather than the back-to-back assessments originally scheduled. After around two hours, the claimant stated she was feeling unwell and requested that the balance of the assessment be rescheduled. The insurer agreed to reschedule the assessment and it was continued on June 27, 2018. The assessor noted that “Ms. Ruchlemer reported she felt unwell and was experiencing severe back pack pain and headaches, and again requested the assessment be rescheduled.” The assessor also reported that the claimant refused to participate in the functional portion of the assessment. Vice-Chair Flude noted a previous insurer’s report from two months prior, in which the assessor noted that the claimant performed tasks, albeit with both pain and difficulty. Based on the evidence, Vice-Chair Flude opined that it was reasonable for the claimant to refuse a physical exam that may cause her pain, and that a refusal to participate in those circumstances did not amount to a refusal to cooperate entirely with the assessment. The preliminary issue was dismissed. In terms of NEBs, Vice-Chair Flude opined that the claimant did not meet the complete inability test as she still traveled out of town to visit relatives, traveled internationally, went to restaurants and socialized, and the extent that she reported a decline in these activities would not amount to a complete inability to carry on a normal life as defined in the SABS.
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