Are you frustrated with all of the conditions and limitations being sought to be placed on insurer examination rights pursuant to the Statutory Accident Benefits Schedule?  Read on, McDuff….

On October 8, 2015 a helpful FSCO decision was released with respect to the limits of an insurer examination. 

The Applicant, Deschambault, applied for non-earner benefits which Wawanesa had denied based on a Section 44(1) multi-disciplinary assessment in 2013. A notice to attend a second round of assessments was served by Wawanesa in 2014. The Applicant did not attend because Wawanesa would not agree to six conditions. 

Wawanesa sought to preclude the arbitration from proceeding and preclude the plaintiff’s entitlement to non-earner benefits through an in writing preliminary motion. Although Arbitrator Rogers ultimately stayed the Arbitration and ordered the insurer examinations and reserved judgment on non-earner entitlements (based on Section 37(7) and 37(8) of the Schedule), he made a number of findings that will inevitably be helpful to defence counsel faced with a Claimant wanting to limit insurer rights under Section 44 of the Schedule (section 282 of the Insurance Act, R.S.O. 1990, c.I.8). The elusive test of “reasonableness” in considering a proposed assessment has been greatly clarified by this decision.

Firstly, Deschamblault objected to the fact that the company co-ordinating the assessments were not health care professionals and other similar companies had been found to engage in improper conduct. Arbitrator Rogers stated, “this fact is irrelevant”. As such, the use of assessment centers to co-ordinate assessments, even those accused of engaging in improper conduct, is a non starter.

Deschamblault also insisted on his lawyer approving the form of written consent required to be signed by the assessor before the assessment takes place. This issue, Arbitrator Rogers said was, “a red herring”. He further noted that Luther and Economical Mutual Insurance Company FSCO A10-003773, May 23, 2012 “did not confer the right to prior legal advice with regard to all proposed consents”. The problem with getting pre-approval of the wording of consents by assessors seems to be resolved with this statement.

Thirdly, Deschambault insisted the examination be limited to only his new medical productions, otherwise Wawanesa could use the examination to bolster its’ previous denial. “I doubt that an in-person attendance serves any purpose, if the assessors are limited to commenting on new productions…examinations are not deemed unreasonable, simply because they might also prove to be useful”. So much for that argument. 

Fourthly, Deschambault requested the examination last no longer than an hour because of the short period of time between and the fact that two of the three assessors were the same.  Arbitrator Rogers found that there was no history of misconduct by Wawanesa and that although “examinations are inherently intrusive…that fact alone is not reason for restricting” Wawanesa’s section 44(9)(2.iii) rights. 

The fifth issue Deschambault raised was the limitation of the examinations to the issue of non-earner benefits. Wawanesa had already conceded that this was to be the subject of the IE in their Notices. Arbitrator Rogers found no basis to require the same limitation in the consent in addition, as purported to be required by Deschambault’s counsel.

Lastly, Deschambault insisted on the assessors issuing a single report, based on the new examination. Arbitrator Rogers found no “reasonable basis” for that proposed limit and found that it actually ran contrary to Deschambault’s position that in-person examinations should be avoided.

In working out reasonable terms for an insurer assessment, counsel must consider the six basic elements; timing, prejudice, number and nature of previous assessments, nature of requested assessments, any new issues and a nexus between the assessment and the injuries, Arbitrator Rogers has provided not only a useful ruling on actual issues often raised between counsel but a shift in broadening the insurer’s ability to use Section 44 to fully understand whether or not an insured is entitled to benefits.