By: Bogdan Miscevic, Partner & Simren Dhother, Articling Student
Preface
Determining whether an insurer has provided appropriate rationale for conducting an Insurer’s Examination (“IE”) can be complicated. When an insurer notifies a claimant of the requirement to attend an IE, the insurer must provide an appropriate Notice of Examination if they hope to later take advantage of the remedies contained within the Statutory Accident Benefits Schedule (the “SABS”) for non-compliance if the claimant refuses to attend the IE.
In the recent decision of Berardinelli v Aviva Insurance Company[1], the Licence Appeal Tribunal (the “LAT”) dismissed the insurer’s preliminary issue motion which sought an Order that the applicant was barred from proceeding with her application for benefits by virtue of her failure to attend multiple IEs. More importantly, the adjudicator found that the Notices of Examination were deficient as they did not appropriately follow the procedural requirements as set out in the SABS.
[1] Berardinelli v Aviva Insurance Company, 2023 CanLII 138 (ON LAT)
Facts of the Case
On July 1, 2019, the applicant was involved in a motor vehicle accident and applied for accident benefits with her insurer pursuant to the SABS. Despite multiple requests by the insurer for IEs, the applicant had only attended one IE since the subject accident.
As a result, a preliminary issue was raised – whether the applicant was barred from proceeding with her LAT application pursuant to Section 55(1)2 of the SABS for failing to attend multiple scheduled IEs.
The Adjudicator held that the SABS is clear that the applicant has a duty to participate in IEs that are reasonable and necessary. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance. This could include the respondent proving that the Notices of Examination fail to comply with the requirements of the SABS.
After reviewing the Notices of Examination, the adjudicator found that several of the Notices of Examination did not refer to any of the claimant’s medical conditions or provide the appropriate provisions of the SABS which the respondent relied upon. In addition, the medical reasoning setting out the basis for the request for the IE was too vague and unclear as to which impairments the insurer was referring to at the time the Notices were sent to the applicant. The adjudicator ultimately determined that the Notices were deficient and dismissed the insurer’s position in its entirety, thereby allowing the application to proceed to a hearing before the LAT.
Analysis & Closing Remarks
While it is not in dispute that insurers have the right to insist on IEs, they must be vigilant and follow the procedural requirements as contained within the SABS. Specifically, the SABS indicates that if the insurer would like an individual to attend an IE, it must provide a notice at least five (5) business days prior to the examination that sets out the following:
1. The medical and any other reasons for the examination;
2. Whether the attendance of the insured person is required at the examination;
3. The name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
4. If the attendance of the insured person is required at the examination, the day, time, and location of the examination and, if the examination will require more than one day, the same information for the subsequent days. O. Reg. 34/10, s. 44(5).
Where an insurer’s notice fails to satisfy these requirements, the insurer may be limited in its ability to compel a claimant to attend an IE. If subsequently denying benefits by virtue of the non-attendance, the LAT may then refuse to dismiss an applicant’s Application for Benefits.
Therefore, technicalities matter – a Notice of Examination must comply with ALL procedural requirements contained in the SABS. If the insurer fails to follow the procedural requirements (i.e., cross all Ts and dot all Is), the LAT may use its discretionary powers to allow an Application for Benefits to proceed to hearing – forcing the insurer to incur costs of the IE as well as resulting in disadvantages by proceeding with the hearing without the insurer having the benefit of the IE to support its position on the matters at issue.