The License Appeal Tribunal (“LAT”) recently released its reconsideration decision in Iravani-Fard v. Economical Insurance, 2022 CanLII 109480. The decision addresses the consequences of a claimant’s failure to attend insurer examinations, and recognizes the rights granted to insurers by the SABS.
Facts at issue
The claimant was involved in a motor vehicle accident on December 5, 2018. As a result of this motor vehicle accident, the claimant sought to receive accident benefits, including medical and rehabilitation, attendant care and income replacement benefits.
In order to assess the claimant’s entitlement to benefits, a number of assessments were scheduled pursuant to s.44 of the SABS. The claimant failed to attend the examinations and notified the insurer through her counsel that she would not attend the examinations. As a result, the insurer brought a motion pursuant to s.55 of the SABS, to bar the applicant from continuing with a LAT application due to her continued non-compliance with s.44.
Section 55 of the SABS sets out the consequences when a claimant fails to attend examinations that have been organized by the insurer. It states:
55. (1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:
2. The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.
Section 44(5) sets out what is required in a proper notice that an assessment is required:
44. (5) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
(a) the medical and any other reasons for the examination;
(b) whether the attendance of the insured person is required at the examination;
(c) 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
(d) 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.
In his initial decision, Adjudicator Derek Grant, reviewed the undisputed facts: the claimant had failed to attend 5 separate examinations and made the insurer aware that they did not intend to attend any further examinations. Adjudicator Grant considered the insurer’s examination requests and determined that they complied with the requirements of s.44. Of note is that the adjudicator considered the applicant’s refusal to attend as support that the notices were sufficient, stating:
In my view, the medical and any other reasons are clear and sufficient to allow an unsophisticated person to make a fully informed decision to either accept or dispute the notice. Indeed, GIF refused to attend, so, I find any argument that it was not clear that her attendance was required, is weakened by this fact.
Adjudicator Grant determined that, in scheduling examinations under s. 44, no input or consent from the insured person is required and that the right to request an IE is “solely at the discretion of an insurer” as long as three criteria are met: the IE is reasonably necessary; the notice complies with the requirements of s.44; and all reasonable efforts to schedule the examination for a day, time and location that are convenient for the insured person, in accordance with s.44(9).
Adjudicator Grant ultimately concluded that the claimant was statute barred from proceeding with their claim due to their failure to attend the scheduled examinations. He determined that there was no exception to be granted to the claimant, as the insurer had been denied the opportunity to examine the claimant.
The claimant requested that the matter be reconsidered on the grounds that it was an error of law and fact to bar the claimant’s LAT application based on the respondent not getting the opportunity a chance to conduct an examination. Arbitrator Grant presided over the reconsideration hearing.
The claimant raised a series of arguments to support her claim for reconsideration including that she was going to attend examinations for catastrophic impairment and that the decision of Adjudicator Grant that the application was statute barred was a breach of procedural fairness.
Adjudicator Grant made it clear that there is no remedy for non-compliance in attending examinations except for attending the examinations. The adjudicator stressed that when significant time passes due to failed attendances at examinations, it prevents insurers from obtaining accurate information on the impact of the claimant’s impairments. Adjudicator Grant stressed that insurers have a right to conduct a reasonable number of examinations, given the benefits sought.
Finally, the adjudicator acknowledged the claimant’s arguments that the SABS are consumer protection legislation, but commented that consumers have their own direction to follow. Adjudicator Grant stated:
… each of the insured and the insurer have corresponding obligations to each other as part of the accident benefits claim. The Schedule is also consumer “direction and instruction”, and where the consumer has failed to follow the direction and instruction of the Schedule, an insurer has a right to seek out the appropriate remedy to protect its interests with a claim for benefits. The protective nature of the Schedule is for both parties, where a party has failed to comply as required.
This pair of decisions by Adjudicator Grant has a few important takeaways.
First is the importance of properly scheduled s.44 examinations. If an insurer’s notice of examination is not compliant with s. 44, the insurer will not be able to rely on their only remedy, the statutory bar provided by s. 55.
Second is the requirement for a claimant to attend properly scheduled s.44 examinations. Often these examinations are the most reliable way for insurers to obtain information on a claimant’s functional abilities and will generate essential evidence to resolve disputes. Therefore, the consequences for refusing to attend are steep and can lead to claimants not having their cases proceed past the preliminary issues stage.
Importantly, Adjudicator Grant recognized that insurer examinations are specific and time sensitive. He refused to accept that the claimant’s promise of future attendance at the upcoming catastrophic impairment examinations was sufficient to remedy the failure to attend the earlier examinations to assess income replacement benefits entitlement.
Finally, Adjudicator Grant insisted that the SABS are not just consumer protection legislation, but that it is also instructive legislation that affords rights to both consumers and insurers. Although the consumer protection nature of the SABS is often raised in proceedings before the LAT, it is rare for adjudicators to recognize the consumer’s obligations and comment on the rights guaranteed and provided to an insurer by the SABS.