Deschambault and Wawanesa, FSCO A14-005855, October 8,
Accident benefit insurers continue to be called upon to justify
their entitlement to assessments under section 44 of the
Schedule, notwithstanding the clear language of the
section. A recent decision affirms that section 44 clearly
entitles the insurer to an assessment and that there must be
evidence of unfairness before limits will be imposed.
Deschambault and Wawanesa recognized that the insurer
has a presumptive right to section 44 examinations and that an
insured's insistence upon imposing limits upon the assessment
can amount to a refusal to attend that would permit an insurer to
refuse to pay a benefit under section 37(7) of the
In Deschambault the arbitration was scheduled for
determination of the insured's entitlement to a non-earner
benefit. The insurer previously conducted a
multi-disciplinary assessment and concluded the insured did not
meet the disability test. The insured applied for mediation
approximately one year later and presented new information in
support of his claim. The insurer scheduled a further
multi-disciplinary assessment a few months later. The
arbitration was scheduled for over one year later.
The insured refused to attend the assessments unless the insurer
agreed to the following terms:
the right to review any consent forms with his lawyer;
limit the examination to issues raised by his new medical
limit the examination to one hour; and
limit the assessors to issuing a single report based upon the
The Arbitrator held that the examinations were reasonably
necessary without terms and that the terms sought by the insured
amounted to a refusal to attend, staying the arbitration and
triggering section 37(7) of the Schedule.
There was no absolute right to review the consent with counsel
prior to signing and there was no evidence that prior consents
breached the insured's rights under the Schedule.
An in-person examination would serve no purpose if it were
limited to new issues raised in the insured's productions.
A time limit was not a reasonable restriction to the
insurer's right to examination and ran contrary to section
44(9)(iii) of the Schedule. There was no evidence of
There was no reasonable basis to limit the assessors to issuing
a single report. It would require the insurer to again engage
the examination process in the event it receives new information
that could be reviewed without an in-person examination. This
ran contrary to the insured's position that an in-person
examination should be avoided if reasonably possible.
The message: While section 44 assessments obliges the
insured to submit to "reasonable" examinations, this does
not open the door to the insured imposing terms or limits on the
assessment without evidence to support such a demand.
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