The recent FSCO preliminary issue decision of Arbitrator Rogers in Deschambault v. Wawanesa Mutual Insurance Company (October 2015) confirms that an Insurer has a prima facie right to schedule examinations under section 44. It also confirms that the Insurer controls the examination process and an Insured does not have a right to impose his/her own terms upon the examination.
The Insured, Robert Deschambault, attended a multidisciplinary insurer examination in January and February 2013, about one year post-accident, to address non-earner benefits. Following the examination, his non-earner benefits were terminated on the basis of the assessors’ opinions. In late 2013, the Insured submitted an updated Disability Certificate suggesting he still met the test for non-earner benefits. He also submitted a significant amount of new medical documentation in support of his position. The Insurer determined that it required further section 44 assessments and notified the Insured in accordance with the SABS. However, the Insured refused to attend unless Wawanesa agreed to limit the assessments on the basis of terms proposed by him. Among other things, the Insured demanded that the assessments be limited to the consideration of new medical productions only and imposed a one hour time limit. Wawanesa refused to agree to the terms proposed by the Insured and the Insured refused to attend the assessments.
This matter proceeded to a preliminary issue hearing in writing. Wawanesa took the position that the requested assessments were reasonably necessary, that the Insured’s failure to attend the assessments was unreasonable, that the FSCO arbitration should be stayed until the Insured attended the assessments and that the Insured was precluded from claiming non-earner benefits due to his failure to attend the assessments.
The Arbitrator agreed with Wawanesa that the assessments were reasonably necessary. In his analysis, he recognised that procedural fairness is now considered an overriding consideration when determining if an examination is reasonably necessary.
The Arbitrator rejected the Insured’s argument that the use of a company to co-ordinate the assessments was not permitted by the SABS in light of the fact that the assessors themselves were regulated health professionals. The Arbitrator rejected the Insured’s proposal that only new medical productions be considered. He also rejected the proposed one hour time limit. He stated that the Insured’s proposed limitations were not a reasonable restriction of Wawanesa’s rights of examination, which are quite broad. He also rejected the Insured’s proposal that Wawanesa be limited to obtaining only one copy of the assessment report and requiring Wawanesa to obtain consent from the Insured to request any further copies of the assessment report. The Arbitrator stated that this condition would prevent Wawanesa from being able to request additional paper review assessments, if necessary, which ran contrary to the Insured’s principal position that in-person examinations should be avoided.
The Arbitrator ultimately concluded that Wawanesa’s requested examinations were reasonably necessary, without terms, and that the Insured had failed to attend. As a result of this non-attendance, the arbitration was stayed until the Insured attended, as it would be unfair to Wawanesa to continue without the additional opinions sought. While the Arbitrator also stated that Wawanesa may rely on section 37(7) to refuse to pay non-earner benefits until the Insured attended, he refused to make a decision on whether the Insured’s refusal to attend was reasonable, as required by section 37(8).
As noted above, this case confirms that Insurers have the right to control the section 44 examination process without undue restrictions being placed on the process by Insureds. However, it is still important for Insurers to always deal with Insureds in good faith, to provide reasons why any proposed restrictions are considered unreasonable in the particular circumstances of each case and to ensure that they meet the requirements for assessment requests outlined in the SABS.
