V103 – Insurer Examinations – Balancing the Rights of Insurers and their Claimants
Insurer examinations are impactful to our clients. It’s hard for them to accept that the insurer is questioning whether a benefit should be paid, and the process of revisiting everything that they have been through, and all that they have lost, is painful. Further, the examination is conducted by a stranger; a person with whom there is no trust and no treatment relationship. When faced with an insurer examination, we often see clients react with feelings of fear, anxiety, hopelessness, anger, and frustration.
That being said, insurers certainly do have the right to impose insurer examinations. Section 44 of the Statutory Accident Benefits Schedule states:
44. (1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
In 16-003144, G.P. v Cumis General Insurance Company, the Tribunal considered the fine balance that must be struck between the insurer’s right to impose an insurer examination and the injured person’s right to privacy. This decision is an interesting read and should be considered by all who work in the accident benefits industry.
This case considered whether the insurer ought to have been able to impose an insurer examination that included five assessments to address a catastrophic application. A key point here was that Ms P. had only attended at two assessments in order to have her application prepared.
The dispute arose because Ms P. refused to attend at in-person physiatry and cardiology assessments; she had otherwise attended at two occupational therapy assessments and a psychiatry assessment. At the hearing, the parties agreed the cardiology assessment could proceed as a paper review and so the Adjudicator was only tasked with rendering decision with respect to the physiatry assessment.
Notably, Adjudicator Pay included comment in her decision as follows:
“… the insurer’s right to insurer’s examinations must be balanced with the privacy rights of applicants. Insurer’s examinations are inherently intrusive, and constitute an invasion of individual privacy. The onus is on the insurer to establish that a proposed examination is reasonable. 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. There must also be an acceptable reason for non-compliance with requests for insurer’s examination requests, such as a medical reason for non-attendance. “
Upon considering the matter, Adjudicator Pay ultimately determined that the physiatry assessment could also proceed by way of a paper review; she considered an in-person review as being not reasonably necessary. She reflected that to deny the in-person assessment would not prejudice the insurer and that to otherwise permit it would be overly intrusive given the extent of in-person assessments in which Ms P. had already engaged.
Insurers often send out notices of examinations that include many assessment dates; this is particularly the case when income replacement benefits and catastrophic applications are being addressed.
For the sake of the injured person, for their well-being and to protect their right to privacy, we ought to think critically before blindly requiring or encouraging participation in insurer examination appointments. As example, we may consider:
• Redundancy in the schedule – should psychology and psychiatry both be permitted? Are neuropsychology and neurology both necessary? Are both orthopaedic and physiatry reasonable?
• Timing of the examination – is the client capable of participating in the examination? Will the assessment be informative to the claim considering the recovery to date and the nature of the injury? Is there expectation that the client’s status will soon change due to further medical procedures? How long has it been since the last in person assessment?
• Past participation in examinations – can a paper review suffice at this stage? Have there been repeated examinations already completed on claim?
• The nature of the application under review – is a multi-disciplinary examination fair in response to a limited claim? If a catastrophic application has been submitted on a single criterion basis, should the insurer have the right to test all criteria categories?
As indicated by Adjudicator Pay, the onus is on the insurer to establish that the proposed examination is reasonable. We would encourage insurers to be considerate of objections to scheduled assessments and to be cautious before imposing suspensions if assessments are subsequently refused. Open communication between all parties ought to be encouraged in order that we may jointly strive to ensure that balance is maintained between insurer and claimant rights.
16-003144, G.P. and Cumis General Insurance
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