Insurer Runs Afoul After Refusal To Attend Examination

While it may be comforting to know that you have insurance to protect you in the event of an automobile accident, it is important to read and understand your insurance policy. A failure to do so may leave you without a clear understanding of your obligations under the policy. A good example of the risks of this was demonstrated in a recent decision from the Court of Appeal of Alberta.

An accident and a claim

Neither the Court of Appeal’s decision nor that of the lower court went into much detail concerning the details of the accident, except to state that the insured was involved in a motor vehicle accident sometime around the 24th of January, 2015. The driver alleged she suffered soft tissue and whiplash-related injuries.

Following the accident, the driver made a claim to her insurer. While some payments were made to the insured, the insurer made arrangements for her to have a medical examination performed by a doctor on July 16, 2015. The driver let the insurer know that she would attend the medical examination but requested a medical examination video to be recorded. This was contrary to the letter sent by the insurer and they advised the insured that videographers were not accepted by the doctor. When the driver refused to attend the examination without the right to record it, the insurer denied all benefits to her.

The original trial

The trial judge found that the insurer did not breach the terms of its automobile policy when it declined coverage to the drive after she refused to attend a medical examination unless it was recorded. The policy stated, “the Insurer has the right and the claimant shall afford to a duly qualified medical practitioner named by the Insurer an opportunity to examine the person of the Insured’s person when and as often as it reasonably requires while the claim is pending…”

The Court of Appeal summarized the trial judge’s reasoning as follows,

“The trial judge concluded that Special Provision 4 was unambiguous. It gives the insurer the right to have the insured attend a medical examination by a duly qualified medical practitioner named by the insurer. The insured must afford the practitioner an opportunity to examine the insured’s person. The right to name the practitioner lies with the insurer and nothing in the wording of the provision restricts the right of the insurer to choose the practitioner. Nothing in the provision restricts the practitioner in the manner of conducting the examination.”

On appeal

The driver appealed the trial judge’s decision, arguing he erred in failing to correctly interpret the phrase “afford an opportunity.” She put forward that the trial judge interpreted the phrase as meaning the driver had an obligation to attend the medical examination contrary to the ordinary meaning of the phrase, which would call for the driver to provide a set of circumstances that would make it possible for the examination to occur. She told the court she did afford an opportunity for the examination to occur.

The court did not agree. In its decision, the court wrote,

“We agree with the trial judge that Special Provision 4 is clear and unambiguous. It gives the insurer the right to require an examination of the insured’s person by a duly qualified medical practitioner selected by the insurer. The provision does not give the insured the right to decline the examination, select the practitioner or dictate the manner in which the examination will take place. When the insurer selects the practitioner, it consequently selects the practitioner’s examination protocol. The practitioner must be allowed to conduct the examination in accordance with the practitioner’s protocol, otherwise the insurer’s right to select the practitioner may be nullified. The insured is obliged to attend an examination by the practitioner selected by the insurer in accordance with the practitioner’s protocol.”

After a car accident, you have a limited window of time to begin a legal claim. An experienced personal injury lawyer can review your situation and advise you about your legal rights and options for recovery. Your lawyer will also ensure that your insurance company does not attempt to limit or deny your available compensation.

The team at Derfel Injury Law works extensively in personal injury and motor vehicle claims. If you have been involved in an accident, we can provide guidance and support so you can focus on getting your life back on track.  Call us at 416-847-3580 to schedule a visit at the office nearest to you, or contact us online.