Beard Winter LLP’s Cary Schneider has won a hotly-contested dispute regarding a claimant’s obligation to attend an insurer examination. The recent Licence Appeal Tribunal (LAT) decision of M.B. v. RBC General Insurance Company (2018) is an important win for insurers, when faced with opposition from plaintiff’s counsel, as it sets the precedent for how to successfully pursue a Section 44 insurer examination.
In this case, the claimant initially refused to attend an insurer examination, to assess the reasonableness of a $15,669.40 chronic pain treatment plan, on the basis that the insurer had not set-out sufficient reasons for same. The claimant won the original motion as the adjudicator agreed that the reasons provided were not specific enough to explain why an examination was required. Rather than being deterred by this result, Aviva then provided a further notice with more detailed reasons as to why the claimant is obligated to attend the assessment. The claimant again refused to attend and a second motion was heard. The relevant section of the notice read as follows:
“Based on a review of your complete file and the documentation we have received to date, we do not agree to fund the goods and services proposed on this treatment and assessment plan at this time for the following reasons:
Some of your doctors including Dr. Mailis-Gagnon (physiatrist) have found that you suffer from a condition known as complex regional pain syndrome. Dr. Safir (orthopaedic surgeon) found that you do not suffer any objective evidence of any ongoing disability. Dr. Patterson (psychiatrist) found that you do not suffer from any psychiatric diagnosis. Multiple doctors have documented physical pain complaints but there is a question as to the substance and nature of the impairment. There is a question as to what would be the appropriate treatment (if any) in light of the nature of your injuries and the form of therapy received to date. It is not clear whether the treatment proposed would be beneficial and/or is essentially a duplication of the treatment received so far. Based on a review of your complete file and the documentation we have received to date, we do not agree to fund the goods and services proposed on this treatment and assessment plan dated April 20, 2016, at a total cost of $15,669.40.
Therefore an insurer examination is required at this time in order to determine whether the goods and services proposed in this treatment and assessment plan are reasonable and necessary for the injuries you sustained in the accident.”
The adjudicator found that the adjuster had (1) demonstrated that he reviewed the treatment plan and the medical evidence submitted and (2) stated that there is not sufficient compelling evidence to find the treatment plan reasonable or necessary. The adjuster effectively demonstrated that he had considered the file by setting out some of the findings of the health practitioners, which do not support the presence of an ongoing disability. The notice makes it clear that there is a question as to the substance of the impairment and the appropriateness of the treatment that is in dispute.
The adjudicator found that the standard is to provide medical reasons based on the information before the insurer at the time that the treatment plan was denied and referred to an examination. There cannot be an expectation that the insurer’s reasons would be upheld once the insurer examination is conducted. Accordingly, the question is not whether the treatment plan is reasonable, but rather whether it was reasonable to assess the treatment plan. The claimant was ordered to attend the insurer examination.
This decision is important for two substantive reasons: (1) it articulates clear reasons as to the standard that an insurer needs to meet to conduct an insurer examination under Section 44 and (2) if the insurer fails to provide adequate reasons for the assessment the first time around, the insurer has an opportunity to correct that mistake even in light of an adverse adjudicator decision. Claimants may take heed from this result that it is not worth challenging an insurer’s right to proceed with an insurer examination based on technical grounds if the insurer will simply be able to correct the notice thereafter.
Do you have questions about this topic? Email Cary at firstname.lastname@example.org or call him at 416-306-1751.