Refusal to Attend a Section 44 Insurer’s Examination Results in the Tribunal’s Refusal to Hear the Matter by Nora Refai

Apr 03, 2018

The Licence Appeal Tribunal has repeatedly held that an applicant is precluded from applying to the Tribunal if the applicant failed to attend a requested s. 44 Insurer’s Examination (“IE”). Importantly however, the IE request must be compliant with s. 44 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The question then becomes, what does the Tribunal consider to be a “compliant” s. 44 IE request?

In 17-001508 v. Heartland Farm Mutual dated July 26, 2017, the applicant argued that he refused to attend a scheduled IE because the respondent failed to provide “the medical and any other reasons” for the examinations as required by the Schedule. Adjudicator Rupinder Hans rejected this argument and found that the respondent did in fact provide valid medical reasons in the IE request. These reasons included a lack of medical documentation that supports the need for the treatment plan in dispute, and the applicant’s noncompliance with the insurer’s request for medical documentation. Accordingly, Adjudicator Hans held that s. 55 of the Schedule precluded the applicant from applying to the Tribunal.

Similarly, in 17-002894 v. Aviva Insurance Company dated September 27, 2017, Adjudicator Brian Norris held that the applicant was barred from commencing a proceeding because he did not attend a “properly scheduled” IE. A “properly scheduled” IE is one that provides notice to the applicant, no less than five business days before the examination, that states:

1) The medical and any other reasons for the examination;

2) Whether the insured’s attendance is required at the examination;

3) The name of the person/people who will conduct the examination, their title/designation/specialty, and the regulated health profession to which they belong; and

4) The date, time, and location of the examination.

Additional considerations of a “properly scheduled” IE include:

1) An insurer shall make reasonable efforts to schedule the examination for a day, time, and location that is convenient to the insured; and

2) The insured and insurer shall provide relevant information and documents to the examiner no later than five business days before the examination.

Adjudicator Norris also considered these factors in 17-004104 v. Aviva Insurance Company dated November 20, 2017. In this decision, he held that the applicant was precluded from adjudicating entitlement to a psychological assessment because the applicant had not complied with s. 44, and the IE notice met the criteria listed above.

In a recent reconsideration decision dated February 26, 2018, 17-001088 v. Aviva Insurance Company, SLASTO Executive Chair Linda P. Lamoureux upheld the Tribunal’s decision to adjourn the proceeding until the applicant attended the IE she had previously failed to attend. Ms. Lamoureux found nothing unreasonable about the respondent’s request for an in-person IE, as opposed to a paper review. The applicant’s argument that the medical information provided to the respondent made an in-person IE unreasonable was flatly rejected.

It is important to note under what circumstances the Tribunal will find an IE request unreasonable. In 17-005291 v. Travelers Canada dated March 13, 2018, Adjudicator Cezary Paluch dismissed Travelers’ motion to compel the applicant to attend s. 44 IEs and to preclude the applicant from applying to the Tribunal because she refused to attend the IEs.

The Tribunal applied the following guiding criteria in assessing the reasonableness of the proposed IE:

i. the timing of the insurer’s request;

ii. the possible prejudice to both sides;

iii. the number and nature of the previous insurer’s examinations;

iv. the nature of the examination(s) being requested;

v. whether there are any new issues being raised in the applicant’s claim that require evaluation; and

vi. whether there is a reasonable nexus between the examination requested and the applicant’s injuries.

Firstly, Adjudicator Paluch noted that the applicant had already attended three in-person IEs to assess her claim for income replacement benefits. Secondly, while the insurer argued that new medical information required additional IEs, Adjudicator Paluch found that the “new” medical information was in fact known to the insurer ahead of the previous IEs, and therefore denying the additional IEs did not create any prejudice to the insurer. Thirdly, it was unreasonable to request an in-person IE rather than a paper review   given how depressed and anxious the applicant was, and the wealth of medical documentation produced. Accordingly, the request for additional IEs was found to be unreasonable.

These decisions provide a clear picture of the direction the LAT takes on issues of attendance at insurer examinations.  Absent a compelling reason why the insurer examination request is not reasonable, or otherwise does not conform with section 44 of the SABS,  the LAT’s recent spate of decisions make clear that a non attendance at IEs will result in a bar to the Applicant from proceeding to adjudication at the LAT.

Nora Refai is the author of this blog and a student-at-law at ZTGH. If you have a question about this blog, please contact Nora

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