Baker v. Blue Cross Life Insurance Company

This case arises out of a long-term disability (“LTD”) dispute with the Plaintiff and her LTD insurer, the Defendant Blue Cross. Stephen Birman of Thomson Rogers represented the Plaintiff.

The Defendant insurer brought a motion to compel the Plaintiff to attend a medical assessment with Dr. Dowhaniuk, a neuropsychologist. The Plaintiff had previously been assessed by Dr. Kane, a neuropsychologist, before litigation commenced, but within the contract of LTD insurance. Dr. Kane conducted a “lengthy in-person assessment” on the Plaintiff in March 2016 and also wrote a further neuropsychological opinion in May 2018. Dr. Kane also provided her opinion to the Defendant on multiple reports concerning the Plaintiff.

The Plaintiff agreed to attend a medical assessment with Dr. Kane, but did not agree to attend an assessment with Dr. Dowhaniuk. The Defendant argued that it required an assessment with Dr. Dowhaniuk as he was an expert with “fresh eyes,” which could prove to be beneficial for both parties as it could result in a change in the Defendant’s position.

In her decision Master Jolley noted that,

“it is clear that the right of an insurer to an examination under a contract of insurance is a right entirely separate from its right as a litigant to request a medical examination under section 105 of the Courts of Justice Act.”

However, Master Jolley found that,

“it is equally settled law that the court may take into account the fact of the prior medical examination”.

She then referenced a number of cases that Thomson Rogers had provided that showed there was no foundation in case law for a further assessment with a “second or new doctor when there had been a prior assessment by a doctor who remained available to carry out the second assessment and possessed the necessary qualifications.”

Master Jolley did not order the Plaintiff to attend an assessment with Dr. Dowhaniuk and agreed that the Plaintiff should attend an assessment with the previous doctor, Dr. Kane. She noted that,

“to have another (doctor) prepare another separate medical report would not be in compliance with the spirit of legislation. The purpose is to provide defendants with an independent medical report, not necessarily another report by another psychiatrist of their own choosing.”

Thomson Rogers was successful in arguing that LTD insurers do not have unfettered discretion when arranging medical assessments in the context of litigation.