Insurer's Examination - is an Assessment Necessary? - Kitchener Personal Injury Lawyer

Aviva Canada and Wilson – INSURER’S EXAMINATION – insurer failed to show that an assessment was reasonably necessary; insufficient information was provided to the insured with respect to the type of examination that the insured was to undergo.

December 29, 2009, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Director’s Delegate: David Evans

Decision Date: July 20, 2009

Aviva Canada Inc. appealed the arbitrator's order that it is not entitled to various insurer examinations under s. 42 of the SABS–1996.

BACKGROUND

Ms. Wilson, injured in a motor vehicle accident on December 12, 2003, claimed statutory accident benefits from Aviva.

By letter dated August 27, 2007, Aviva asked Ms. Wilson to attend insurer examinations (IEs) with a psychiatrist, oncologist and physiatrist "to assist the Insurer in determining your eligibility to receive a specified benefit." Ms. Wilson refused to attend these IEs. Aviva then brought a motion seeking an order requiring her to attend at the IEs and an order finding that its request for the IEs was reasonable and necessary.

At the beginning of the reasons in his decision, the arbitrator noted that there is no jurisdiction to require an applicant to attend at an IE. At the end of his decision, he found that, "without the full particulars of the proposed examinations, and some evidence as to the necessity of the types of examination proposed," he could not determine if the IEs were reasonable and necessary. In between these poles, he devoted several pages to the alleged inadequacies of the insurer's notice for failing to set out the details required for consent to treatment under the Health Care Consent Act.

ANALYSIS

Subsection 42(1) of the SABS–1996 provides that "For the purposes of assisting an insurer determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, an insurer may, as often as is reasonably necessary, require an insured person to be examined under this section by one or more persons chosen by the insurer who are members of a health profession."

As the arbitrator correctly noted, arbitral case law has consistently held that there is no jurisdiction to order an applicant to attend an IE. In Personal Insurance Company of Canada and Thevaranjan, "The arbitral rule therefore allows an arbitrator to adjourn a hearing to allow for an insurer examination in the case of an ongoing claim where, considering all the circumstances, fairness requires it and the s. 42 requirements are otherwise met."

However, the first hurdle Aviva had to get over was proving that the IEs were reasonably necessary. The arbitrator found that it had not provided him with that evidence. The evidence was in the form of a solicitor's affidavit and not from the adjuster explaining why the reports were necessary -– at least in part – to help the insurer adjust the file.

This would have been sufficient to dispose of the matter, except that the Director’s Delegate wished to also deal with the arbitrator's discussion about notice.

Subsection 42(4) provides that, where an insurer requires an insured person to attend an IE under s. 42, it must provide a notice that includes "the type of examination that will be conducted and whether the attendance of the insured person is required during the examination" and "the name of the person or persons who will conduct the examination, the regulated health professions to which they belong and their titles and designations indicating their specialization, if any, in their professions."

The arbitrator found that while the notice was adequate with respect to s. 42(4)(c) in naming the professionals and their disciplines, it was not with respect to s. 42(4)(b) because, the arbitrator stated, "the phrase 'type of examinations' means more than by whom and by what discipline the examinations are conducted." He then analogized with the provisions of the HCCA to find that "type of examination" includes the nature of the treatment, the material risks of the treatment, the material side effects of the treatment, and alternative courses of action.

The Director’s Delegate disagreed with the arbitrator's approach because the arbitrator applied the HCCA without any submissions from the parties. Before such a wide-ranging notice requirement could possibly be imposed, it seemed that submissions about its applicability would be necessary. The Director’s Delegate also noted that, by way of contrast, in Shin and Co-Operators General Insurance Company, the arbitrator stated that "An 'examination that will be conducted' is, for example, a psychiatric examination, a neurological examination, a functional abilities evaluation, to name but a few types of examinations."

The Director’s Delegate disagreed with the arbitrator on another point. The arbitrator appeared to suggest that the insurer had to consider a paper review before it could require the insured to attend an IE. However, s. 42(4)(b) provides only that the insurer's notice has to state whether or not the person's attendance is required.

The insurer still has to show that the IE is required. Information about the type of examination proposed, especially if it is an apparently unusual request like the one for an oncology exam, will obviously be helpful in proving that point. In that light, the Director’s Delegate could understand why the arbitrator stated that it was not at all clear on the evidence before him just what would be the parameters and the nature of the proposed examination.

About Paquette Travers & Deutschmann

Paquette Travers & Deutschmann serve South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann and Doug O’Toole focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

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