In this recent appeal of a LAT reconsideration, the Divisional Court confirmed an AB insurer cannot require a section 44 medical examination to determine eligibility for prescription medication claims.[1]
Background
Ms. Joaquim was injured in a collision on January 12, 2017, and applied for accident benefits from her insurer, Intact. Approximately 20 months later, she submitted expenses related to prescription medication. Intact requested further information from Ms. Joaquim to determine if the expenses were reasonable and necessary, to which Ms. Joaquim did not respond. Intact then advised it required her to undergo a section 44 examination to determine whether the proposed expenses were reasonable and necessary. Ms. Joaquim declined to attend, because the Statutory Accident Benefits Schedule (SABS) does not permit insurers to request examinations to determine eligibility for prescription medication claims. Intact denied her claim.
Ms. Joaquim applied to the LAT to dispute the denial, however, following a written hearing on the preliminary issue of standing, the LAT barred her from proceeding due to her refusal to attend the section 44 examination.[2] Ms. Joaquim requested a reconsideration, which was denied.[3] The Divisional Court set aside the decisions of the adjudicator, however, and allowed the appeal.
Analysis
Intact took the position that section 44(1) of the SABS provides an insurer with the “overarching authority to require an examination to determine whether any statutory accident benefit is reasonable and necessary, unless it falls into an enumerated category of benefits that is specifically excluded” (prescription medication does not fall under such an exception in section 44(3)).[4] Ms. Joaquim’s position, however, was that the modern approach to statutory interpretation required that section 44 be read in the context of the entirety of the SABS and that Intact had no authority to require her to undergo a section 44 examination.[5]
Prescription medication claims fall under the category of medical and rehabilitation benefits, however section 38(2)(c) of the SABS allows these claims to be submitted on an expense claim form (OCF-6) instead of a treatment plan (OCF-18).[6] Regardless of how the claim is made, the expense must be reasonable and necessary as a result of the impairment sustained by the injured person.[7]
The Divisional Court recognized that failing to attend an insurer’s examination, when properly requested, can bar an application to the LAT, however the issue in this case was whether Intact had the authority to make the request at all.[8] Under section 33 of the SABS, an insurer can request information reasonably required to assess whether a claimed expense is reasonable and necessary.[9] If the information does not support eligibility, or is not forthcoming, the insurer may simply deny the claim.[10] Section 38 of the SABS specifically permits an insurer to require a medical examination when there is a dispute involving an expense described in a treatment and assessment plan, however there is no such provision with respect to claims that are submitted without a treatment plan, such as prescription medication claims.[11]
The LAT had reasoned that an insurer has an overarching ability to request an examination under section 44(1), subject only to the restrictions in that section (claims for benefits in accordance with the MIG; funeral benefits; death benefits), however the Divisional Court found that the section must be read in the context of the SABS as a whole.[12] There would be no purpose in other sections of the SABS describing instances that may trigger a section 44 examination if section 44 granted the insurer “the overarching authority under section 44 to require an examination to determine eligibility for any benefit”.[13] Further, the Court noted that contrary to the LAT’s conclusion, section 44(3) does not provide an exhaustive list of circumstances where an insurer is prohibited from requesting an examination, as for example, section 42(12) prevents an insurer from requiring an examination under section 44 to determine entitlement to attendant care benefits if more than 104 weeks have passed since the collision.[14] The Court found that section 44 cannot be read in isolation, and that in doing so, the LAT had made a legal error.[15]
Result Section 44 of the SABS does not confer overriding authority on insurers to require examinations in any circumstance, in order to determine whether a claimed benefit is reasonable and necessary.[16] Prescription medication claims, properly submitted through an expense claim form (OCF-6), cannot trigger a requirement to undergo a section 44 examination.[17] The Divisional Court therefore set aside the decisions of the LAT Adjudicator refusing Ms. Joaquim standing to commence a LAT proce
[1] Joaquim v Intact Insurance Company, 2023 ONSC 5120 at 5
[2] Joaquim v Intact Insurance Company, 2021 CanLII 134243 (ONLAT)
[3] Joaquim v Intact Insurance Company, 2022 CanLII 106458 (ONLAT)
[4] Supra note 1 at 7
[5] Ibid at 6
[6]Ibid at 14-15
[7]Ibid at 15
[8]Ibid at 13
[9]Ibid at 16
[10] Ibid
[11] Ibid at 17
[12] Ibid at 25-26
[13]Ibid at 27-28
[14] Ibid at 29
[15] Ibid at 30
[16] Ibid
[17]Ibid
