Can My Insurer Demand an Independent Medical Examination Before Paying Out Accident Benefits?

Ontario is a “no-fault” jurisdiction with respect to motor vehicle accidents. This means that your own insurance company is expected to pay you certain statutory benefits if you are injured in a car crash. Ideally, the system is supposed to promptly compensate you without the need to jump through a bunch of legal hoops. Unfortunately, that is not always how things work in practice.

One tactic that Ontario insurance companies frequently employ to delay or deny coverage is requiring accident victims to undergo what is known as an “insurer’s examination” (IE). Such examinations are only supposed to be used for the “purposes of assisting an insurer to determine if an insured person is or continues to be entitled to” compensation under Ontario’s Statutory Accident Benefits Schedule.

The insurance company is responsible for arranging and paying for the IE, meaning the insurer unilaterally determines the doctor. It also decides whether or not the insured victim is “required” to attend the exam–provided the insurer gives at least five days’ notice. If the victim fails to attend, he or she may be deemed in “non-compliance” with the policy and denied benefits.

B.H. v. Aviva Canada, Inc. Insurer Had No Basis to Demand Independent Medical Examination

There are certain restrictions on when and how an insurance company may demand an independent medical examination. The insurer must give the accident victim a written statement of the “medical and any other reasons for the examination” in the notice described above.

This is consistent with another provision of Ontario insurance law that states an insurer must explain its “medical reasons and all of the other reasons” for refusing to pay for an accident victim’s medical treatment under the benefits schedule.

On September 6, 2018, the Executive Chair of the Licence Appeal Tribunal, which oversees benefit disputes between accident victims and insurance companies, issued an important decision clarifying an insurer’s obligations under Ontario law.

The case involved Aviva Canada, Inc., one of Ontario’s largest automobile insurance companies. The victim was injured in a 2014 accident. More precisely, he was driving through an intersection when another vehicle struck him from the side.

The victim sought immediate medical attention. A physician diagnosed the victim with a “lower back pain soft tissue injury.” This pain persisted long after the accident. Indeed, the victim’s medical records indicated an extensive treatment history, which included two insurance examinations in late 2014.

The second of these exams confirmed the plaintiff suffered from lower back pain as well as a “whiplash associated disorder.”

The Occupational Therapist’s Recommendations and the Insurance Company’s Response

In 2016, more than two years after the accident, an occupational therapist (OT) reviewed the victim’s living situation and made a series of recommendations. She noted the applicant continued to walk “very slowly with [the] support of a cane” and had “difficulty coping” with preparing meals and performing other household tasks.

The OT also pointed out that the victim lacked either a “comfortable chair in his apartment” or a suitable mattress to support his injured lower back. Based on this review, the OT said the plaintiff needed a “new power recliner and sleep system” and additional “assistive devices and occupational therapy” to cope with his ongoing injuries.

Providing these items and services would cost Aviva approximately $5,000. But rather than pay, Aviva demanded yet another independent medical examination, this time with an OT of its own choosing. In a July 2016 letter to the victim, the insurer said it was “unable to determine whether the [OT’s] recommendations are reasonably required for the injuries you received in this motor vehicle accident.”

The only further explanation offered was that the OT’s prescribed treatments did “not appear consistent with the patient’s diagnosis.”

The victim declined to attend the insurer’s examination. Instead, he asked Aviva to “clarify its reasons” for its decision to deny treatment. When Aviva declined to give such reasons, the victim applied to the Tribunal for relief. Although the Tribunal sided with Aviva, Executive Chair Linda P. Lamoureux, the Executive Chair, disagreed and ruled in favour of the victim.

The Executive Chair’s Decision

Lamoureux explained that the purpose of Ontario’s statutory benefits schedule was to “prevent insurers from denying treatment arbitrarily, ensure transparency in their decision-making and, most importantly, advance the Schedule’s ultimate aim – to ensure that injured persons have access to accident benefits as soon as possible.”

As previously noted, the law requires an insurance company give an insured victim the “medical reasons” for denying treatment or demanding an independent medical examination.

According to Lamoureux, while there is no precise definition of “medical reasons” in the statute–and in fact, what satisfies this requirement will vary based on the facts of a given case–at a minimum the insurance company must give “specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.”

Ultimately, the Executive Chair said, the insurance company must be sufficiently clear in its reasons so that an “unsophisticated person [can] understand them and make an informed decision in response.” In this case, Aviva’s curt denial letter to the victim “falls short of this mark,” according to Lamoureux.

The insurer failed to “explain in any meaningful way” what additional information it needed, or why it believed the OT’s prescribed treatments were not medically reasonable or necessary. To the contrary, Lamoureux noted the OT’s recommendations were “entirely consistent with the applicant’s diagnoses of low back pain.”

Accordingly, Lamoureux declared Aviva failed to comply with the statutory notice requirements, and as a result it must now pay for the prescribed treatments without further delay.

Preszler Injury Lawyers can Help You Fight for Your Insurance Benefits

Recovering the insurance coverage to which you are rightfully entitled should not be hassle. Unfortunately, insurance providers often find ways to complicate the process of fairly compensating their deserving policyholders. If you have questions about the insurance coverage available to you after your injury-causing motor vehicle accident, contact our Ontario accident benefits lawyers today and receive a free initial consultation. To speak with Preszler Injury Lawyers, call 1-800-JUSTICE.