Failure to Attend Insurer’s Exams Fatal to SABS Claim

In A.U. v. TD Insurance Meloche Monnex, 2020 ONLAT 19-000276/AABS, the insurer denied a treatment plan for a chronic pain assessment and gave notice to the claimant to attend in-person assessments to determine if the denied treatment plan was reasonable and necessary.

The claimant did not attend the assessments. Her counsel advised the medical assessment centre by telephone that the claimant was unable to attend because she was out of the country and it was not known when she would return. Counsel did not advise the insurer of this.

The claimant argued that the insurer failed to comply with s. 44(5) of the SABS. This section requires an insurer to provide medical and any other reasons for an examination.

Relying on previous decisions of the Licence Appeal Tribunal, the claimant stated that the insurer’s notice to attend the examinations was improper because it made no reference to medical records or to having reviewed the treating practitioner’s opinion.

The adjudicator held that not every request for a s. 44 examination will necessitate specific references to medical records or a review of a treating practitioner’s medical opinion. The phrase “medical and any other reasons” is intentionally broad and could include such references, but it does not have to.

The adjudicator stated that the s. 44 notice from the insurer created an obligation on the claimant to comply with s. 44 or to raise any objections upon receipt of the notice. The claimant did not do either of these things.

As a result, under s. 55(1)2 of the SABS, the claimant was not entitled to proceed with her claim for the denied treatment plan.

In summary, when an insurer notifies a claimant of the requirement to attend an insurer’s examination for the purpose of assisting in determining entitlement to a benefit, the claimant must comply with this request or, if there are any legitimate objections regarding the request, he or she must promptly notify the insurer. The failure to do so is fatal to challenging the denied benefit.