Alleging that Insurer Is Trying to Bolster its Denial for a Hearing is Not Sufficient Reason for Refusing an Insurer Examination: LAT Decision 17-002973 by Hesam Motevalli

Aug 30, 2018

Section 44(1) of the Statutory Accident Benefits Schedule provides insurers with the right to require parties to attend insurer examinations (IEs) so as to determine initial and continuing entitlement to benefits. This right is, however, limited to what is “reasonably necessary”. In 17-002973 v Aviva Insurance Company, the applicant was injured in a motor vehicle accident on March 31, 2016, when her parked vehicle was struck by another motor vehicle. As a result of the accident she alleges that she suffered from back, shoulder, wrist and hand pain along with increased stress, headaches and trouble sleeping. Upon submitting an application for accident benefits, the treatment plans and assessments were denied by the Insurer, on the basis that  the applicant’s injuries fell within the MIG.

 

At the LAT, the preliminary issue raised by the insurer was the applicant’s non-attendance at the scheduled IEs. The applicant admitted to attending only one IE for a psychological assessment, while failing to attend five other scheduled IEs including: an in-home assessment, psychiatry assessment, functional abilities evaluation, orthopaedic surgery assessment and a psychology assessment. As a result, the insurer asserted that the applicant was statute-barred from proceeding with the application pursuant to section 55(1) of the Schedule. The insurer claimed that due to non-attendance at the IEs, it was unable to assess the applicant in order to qualify for IRBs, ACBs, medical benefits and rehabilitation benefits. In response, the applicant contended that he did not attend the IEs because they were scheduled on the eve of the hearing and for the sole purpose of bolstering the respondent’s case.

 

Upon considering the totality of the evidence, LAT Adjudicator Ian Maedel found that the applicant was in non-compliance with section 44 of the Schedule. Consequently, the applicant could no longer proceed with the application for IRBs, ACBs, medical and rehabilitation benefits, and could not seek the cost of an in-home assessment until the section 44 IEs were completed. The reason for each assessments were explained in detail by the insurer and tied to each disputed treatment plan in the correspondence sent to the applicant. Furthermore, Adjudicate Maedel refused to view the timing of the respondent’s IE requests as a tactical decision, given the time restraints imposed on the parties by the Tribunal.

 

In assessing the reasonableness of the proposed insurer examination, Adjudicate Maedel considered Arbitrator Feldman’s FSCO decision in Al-Shimasawi and Wawanesa as persuasive. Key criteria to determine reasonableness include: the timing of the insurer’s request, possible prejudice to both sides, the number and nature of prior IEs, the nature of the examination(s), whether new issues raised in the applicant’s claim is a bar from entitlement that requires evaluation, and whether there is a reasonable nexus between the examination and the applicant’s injuries.

               

Upon considering the above criteria, Adjudicate Maedel found that the applicant should have attended the IEs as scheduled and as required under section 44. The reasons for attendance were explicitly laid out in the notices. The IEs were also reasonably necessary, without which the insurer had little medical documentation to verify the applicant’s condition to determine the applicant’s injuries, functional abilities, and entitlement to benefits.

 

Section 55 of the Schedule clearly sets out that an insured person shall not apply to the LAT under subsection 280(2) of the Insurance Act if the respondent has provided notice of an IE and the respondent has not complied with section 44. This creates a positive duty on the insured to attend the IEs as scheduled before a determination on the issues of the MIG, entitlement to benefits, and costs of in-home assessments can be determined.

 

With this decision in mind, claimants will be wise to think twice before deciding not to attend an insurer examination, or risk jeopardizing their entitlement to accident benefits.

 

Hesam Motevalli is an articling student at ZTGH and the author of this blog. If you have a question about a similar file, please contact the LAT practice group or Hesam.

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