May 15, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant and Travelers Canada, 2018 CanLII 13172 ON LAT 17-005291
Date of Decision: March 14, 2018
Heard Before: Adjudicator Cezary Paluch
DOES INSURED HAVE TO ATTEND EXAMINATION: requested IEs are duplicate; requested IEs are not necessary; requested IEs come late in the game; requested IEs are not reasonable or necessary
This is preliminary hearing in response to a motion brought by Travelers to the LAT to prohibit the applicant from proceeding with her application SABs, because she failed to attend several IEs pursuant the Schedule.
The applicant was injured in a car accident on January 8, 2015. The applicant applied to the Tribunal requesting payment of NEBs for the period of August 12, 2015 to date and ongoing following a termination of this benefit effective August 20, 2015 based on a multi-disciplinary IEs.
On November 30, 2017, Travelers sought an adjournment of the hearing date(s) which was approved and a new hearing was scheduled for March 15 and 16, 2018. The applicant did not consent to the adjournment.
On December 15, 2017, Travelers brought a motion requesting that the applicant be compelled to attend s. 44 IEs and precluding the applicant from proceeding with the application pursuant to s. 55 of the Schedule because she refused to attend the examinations.
In an Order released on January 9, 2018, Vice-Chair Hunter did not order the applicant to attend the s. 44 IEs. However, the Order set out that the preliminary issue of whether the applicant was precluded from proceeding with the application because she failed to attend the IEs would be decided in the context of a full hearing. Subsequently, on January 12, 2018, another case conference was held and an Order was issued on February 5, 2018, directing that the motion be argued at the outset of the in person hearing scheduled for March 15 and 16, 2018.
On March 12, 2018, a further case conference took place before Vice-Chair Trojek and the parties agreed to have this motion heard by way of a preliminary issue hearing prior to the hearing on the substantive issues and change the format of the hearing from in-person to a teleconference hearing.
- Is the applicant barred from proceeding with her application to the Tribunal pursuant to s. 55 for non-compliance with s. 44 of the Schedule?
- Travelers’s motion is dismissed. Based on the totality of the evidence before me the requested examinations are not reasonably necessary and the applicant can proceed to a hearing.
In 2015, the applicant attended three in-person IEs to assess her claim for IRBs as part of a multi-disciplinary assessment. The reports dated July 24, 2015, concluded that the applicant did not suffer a complete inability to carry on a normal life. Based on these opinions, Travelers determined that the applicant no longer suffered a substantial inability to carry on a normal life as a direct result of the accident and terminated the NEDs effective August 20, 2015.
On November 13, 2017 Travelers wrote to the applicant indicating that they had received the Disability Certificate dated September 5, 2017 completed and updated clinical notes and records on October 31, 2017. Travelers was in the process of arranging IEs to determine if the applicant suffered a complete inability to carry on a normal life as a direct result of the motor vehicle accident. This correspondence explained that although a prior insurer’s examination report was done with respect to this benefit and stoppage in place effective August 20, 2015, such additional IEs are required to determine if this new information would change the findings of the previous report.
By email dated December 14, 2017, applicant’s counsel advised Travelers that the claimant would not attend the IEs for December 18, 22 and January 12. Travelers wrote to the applicant confirming that she did not attend the scheduled IEs and she was deemed non complaint with s. 44 of the Schedule and the insurer’s stoppage of NEBs remained in effect as of august 20, 2015.
Travelers’s position is that the examinations are reasonable because the insurer received new medical documentation which could potentially affect the applicant’s entitlement to NEBs.
The applicant submits that the insurer examinations are not reasonable or necessary given that the applicant has already attended the assessments with respect to the non-earner benefit and she should not be subjected to a battery of continuous assessments which she finds intrusive and caused her harm because she was forced to relive the incident of the motor vehicle accident.
ANALYSIS – FAILURE TO ATTEND AT AN INSURER’S EXAMINATION
Reasonableness and necessity of s. 44 Assessment
Under s.44 of the Schedule, an insurer may require insurer’s examinations by the health professionals of its choice, but this right is limited to those examinations that are “reasonably necessary”. This is in order to ensure that insurers are able to assess information provided by a claimant and to adequately respond. The Tribunal has established criteria to assess the reasonableness of a proposed insurer examination; the timing of the insurer’s request; the possible prejudice to both sides; the number and nature of the previous insurer’s examinations; the nature of the examination(s) being requested; whether there are any new issues being raised in the applicant’s claim that require evaluation; and whether there is a reasonable nexus between the examination requested and the applicant’s injuries.
The Adjudicator considered all of the factors. In particular, on the timing of the request, number and nature of the previous and proposed examinations and whether there are any new issues being raised by the applicant’s claim requiring an evaluation. It is clear there is a reasonable nexus between the examinations requested and the applicant’s injuries.
It is well accepted that the insurer has an ongoing obligation to assess the condition of an insured person and assess the information it received concerning the person’s condition. Here, Travelers states that they received the new medical information at the case conference on October 31, 2017 and proceeded to schedule the IEs as soon as possible. They wrote to the applicant a few days later on November 13, 2017, indicating that they wished to schedule additional examinations.
The adjudicator reviewed the new information provided to Travelers and accepted the position of the applicant that insurer already had notice of all alleged injuries and impairments prior to this date and this does not appear to be new information. The Adjudicator also found that the request to re-assess the applicant’s entitlement to NEBs at this late stage of the proceedings is especially concerning because it is duplicative.
This is not a case where the applicant has refused to participate in any examinations. Here, the applicant had already agreed to participate in IE’s on three prior occasions. Three in-person examinations; one being at home, and two where the applicant had to travel to two different cities (Hamilton and Burlington), it appears by taxi, are significantly intrusive and insensitive to the applicant’s needs given her current mental state.
In addition, denying Travelers further examinations does not prejudice Travelers. As noted, the applicant already participated in three in-person examinations to address the very issue in dispute in this application. There is no evidence from any of the assessors that further assessments would provide more information. These requested additional examinations (after a hearing date has already been set) should not be on the basis of ensuring that Travelers has a stronger case or an attempt to have further evidence for the hearing rather than for the adjusting process. The test is whether examinations are required when “reasonably necessary.” Given the wealth of information already gathered at the prior in-person assessments, the Adjudicator did not agree that further examinations are reasonably necessary in this case.