When is a request for an insurance exam ‘reasonably necessary’?

Getting insurance claimants to submit to a medical exam has become harder due to a recent decisions by the Financial Services Commission of Ontario.

When Ontario abolished designated assessment centres, it gave insurers the right to request medical examinations for each benefit for which a claimant applied. The only limit on the number of examinations was that a request be
“reasonably necessary.”

Typically, insurers have maintained that all their requests for examination are reasonably necessary and tend to exercise their right to deny benefits if the claimant fails to attend.

“Before the decision in H.T. v. Security National, there was no proper legal interpretation of what was ‘reasonably necessary,’” says David Payne of Toronto’s Thomson Rogers.

The case came about after H.T.’s injury in a vehicle accident in September 2003. Five years later, she applied for statutory benefits and provided an application for determination of catastrophic impairment signed by a psychologist
and based solely on a mental or behavioural disorder.

Security National Insurance Co. responded with a request that H.T. attend four in-person examinations with a psychiatrist, a neurologist, an occupational therapist, and an orthopaedic surgeon.

Then, in September and October, H.T. attended previously scheduled insurer examinations with a psychiatrist, a dentist, and a physiatrist to determine her non-catastrophic entitlement.

The psychiatrist, Dr. L. Jerome, opined that the severity of H.T.’s functional impairment warranted consideration of an in-patient assessment and treatment program for post-traumatic stress disorder. He concluded that she suffered from a complete inability to carry on her normal life.

He also reported that H.T. suffered significant setbacks due to the stress of the assessments, which led her to becoming actively suicidal. He could not “stress strongly enough the risk that four assessments in the span of a little over two weeks” posed to H.T.

Payne’s colleague, Deanna Gilbert, advised the insurer that her client wouldn’t attend the catastrophic impairment examinations. The insurer responded that H.T.’s refusal to attend meant she didn’t meet the requirements for catastrophic impairment.

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