V1001 – Second Round of Catastrophic Insurer Examinations and The Obligation to Produce Records
Being involved in a motor vehicle accident is traumatic and recovering from injury can certainly be difficult. When we consider that the claims experience can also be challenging and invasive, we can appreciate the exceptional pressure and strain that our clients experience. We must always remain sensitive to protecting the well-being and privacy rights of those who have been injured in accidents.
In 18-009821, D.M. and Toronto Transit Commission, the LAT was asked to consider whether the insurer had the right to impose a second round of multi-disciplinary catastrophic assessments. It was also tasked to consider whether the insurer had the right to require the production of medical records for the period starting five years prior to the accident.
The history of this case is such that D.M. submitted a catastrophic application to the TTC and he then attended at a multi-disciplinary catastrophic insurer examination. The insurer examination was not favourable to D.M. and he subsequently sought rebuttal exams, as pursuant to Section 25 of the SABS, with assessors of his choosing. The rebuttal exams were submitted to the TTC in May of 2018. D.M. subsequently submitted an application to the LAT in relation to the catastrophic impairment dispute in October 2018. The TTC advised in February 2019 that it required D.M. to undergo another multi-disciplinary in-person insurer examination in order to determine if he suffered catastrophic impairment. D.M. refused to attend this second catastrophic insurer examination.
Adjudicator Brian Norris considered whether the second round of catastrophic insurer examination was reasonably necessary. The parties in this dispute, and the Adjudicator himself, accepted past decisions as considered by the LAT that set out criteria to assess the reasonableness of such examinations. Such criteria are as follows:
i. the timing of the insurer’s request;
ii. the possible prejudice to both sides;
iii. the number and nature of the previous insurer’s examinations;
iv. the nature of the examination(s) being requested;
v. whether there are any new issues being raised in the applicant’s claim that require evaluation; and
vi. whether there is a reasonable nexus between the examination requested and the applicant’s injuries
This decision is a well-reasoned case and an informative read. The Adjudicator ultimately finds that the insurer examination is not reasonably necessary and could therefore not be imposed. In brief:
i. With respect to timing, Adjudicator Norris believed the purpose of the insurer examination was more to do with bolstering the TTC’s evidence rather than to do with investigating impairment.
ii. With respect to prejudice, Adjudicator Norris found the TTC would not be prejudiced by the refusal of the insurer examination given that it had previously conducted in person examinations related to catastrophic impairment and non-earner benefit.
iii. With respect to the number and nature of prior examinations, the adjudicator recognized neither side as successful in argument.
iv. With respect to the nature of the examinations, the adjudicator was not convinced that in-person assessment must be conducted nor did he recognize the TTC as having attempted to address or accommodate the applicant’s concern that travel would aggravate his psychiatric injuries.
v. With respect to whether evaluation of new issues was necessary, the adjudicator confirmed that the TTC had failed to prove that the rebuttal examinations had raised new issues.
vi. Finally, and while not addressed in the submissions, Adjudicator Norris did recognize the reasonable connection between the proposed examination and the applicant’s injuries.
Also of interest in this decision is the attempt made by the TTC to access medical records that pre-dated the accident by five years. The TTC put forward a position that D.M. suffered a history of psychological and behavioural issues prior to the accident as detailed by self-report in past assessment and as detailed within the OHIP summary. In response, D.M. responded that the request was overly broad and an unwarranted infringement of privacy rights. In rendering his decision on this issue, Adjudicator Norris stated:
“I agree with the applicant and find the respondent’s request is too broad and amounts to an infringement of the applicant’s privacy. I find the evidence cited by the respondent is not relevant to the issues in dispute. Two of the three incidents occurred more than 20 years ago. The last is a single incident which is not an indication of a pattern of behaviour. The time period for which the respondent seeks records is too long before the accident to be relevant to the issues. In the event there was a relevant behavioural pattern, as the respondent suggests, the pattern would manifest in the two years prior to the accident, a period for which the respondent has been provided records.
Lastly, I find the request for documents from all counselling or therapy is too broad. This is because the terms counselling or therapy may relate to circumstances where the applicant has engaged in counselling or therapy which are unrelated to behavioural or psychological issues, let alone the issues in dispute.”
This decision brings to light the need for counsel to be careful and critical when considering insurer requests for examinations and requests for production of records. It is informative and thorough and well worth the read.