Written By: Lindsay Charles and Savannah Snyder, Articling Student
In an accident benefits dispute, under section 44 of the Statutory Accident Benefits Schedule (the “Schedule”), insurers have the right to require an Applicant to undergo a medical examination “not more often than is reasonably necessary”.
In the leading decision of Hameed Al-Shimasawi v Wawanesa Mutual Insurance Company, the Ontario Insurance Commission (the “Commission”) provided guidance on the frequency of insurer’s examinations.
The Commission stated in determining whether an insurer’s examination is required, the insurer has the onus to establish that the proposed examination is reasonable by answering the following question,
Given the information already available, does the insurer reasonably require this examination in order to assess the validity of a claim to ongoing benefits or in response to a new claim (rather than for purposes of trial brinkmanship or an attempt to bolster the insurer’s position)?
The Commission identified six factors to consider in assessing the reasonableness of a proposed examination:
a. The timing of the insurer’s request;
b. The possible prejudice to both sides;
c. The number and nature of previous insurer’s examinations;
d. The nature of the examination(s) being requested;
e. Whether there are any new issues being raised in the applicant’s claim that require evaluation;
f. Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.
The Commission recognized that an insurer has an “ongoing responsibility” to assess the insured’s condition and a request for an examination may still be reasonable even if a benefit has already been denied or terminated. However, in protecting the insured, the Commission recognized that the closer in time the request for an assessment comes to the date set for a hearing, there will be more scrutiny due to the greater likelihood of prejudice to the Applicant.
More recently, the 2017 License Appeal Tribunal (the “Tribunal”) decision of 16-003144 v Cumus General Insurance Company, considered the reasonableness of five in-person insurer examinations. The Tribunal reiterated the reasonably necessary test stating,
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 section has been interpreted as a right of insurers to obtain insurer’s examinations. This right is based on principles of procedural fairness, in order to ensure that insurers are able to assess reports provided by a claimant and to adequately respond. There is no explicit limit to the number of examinations that the insurer can request.
The Tribunal recognized the inherently intrusive nature and invasion of individual privacy that comes along with insurer examinations, noting that the insurer’s right to insurer’s examinations must be balanced with the privacy rights of applicants.
The Tribunal re-stated the factors, relying on the Commission in Hameed Al-Shimasawi v Wawanesa Mutual Insurance Company, to determine whether an insurer’s examination is reasonably necessary,
In balancing these rights, a number of factors can be considered. There must be a reasonable nexus between the type of examination requested and the claimed impairments. The purpose and timing of the request should be considered. Insurer’s examinations should be for the purpose of adjusting the claim, not solely to bolster a case for litigation. Some other factors to consider include the number and nature of previous and requested examinations, whether there are new conditions that need to be evaluated, and whether either side will be prejudiced by the examination or non-compliance with a request for an examination. If there are numerous examinations, the insurer should proceed cautiously, as all of the assessments may not be necessary.
If you or your loved one is injured, it is important to have an experienced team of lawyers to ensure you get the treatment you deserve without jumping through unnecessary hurdles.