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Insurance - Auto - Benefits. Joaquim v. Intact Insurance Company
In Joaquim v. Intact Insurance Company (Div Court, 2023) the Divisional Court considers "whether automobile insurers can require an insured to undergo a medical examination to determine eligibility for prescription medications claims". In these quotes the court considers procedures for establishing entitlement to benefits, here specifically prescription drug benefits:[1] This appeal from decisions of the Licence Appeal Tribunal (the “LAT”) addresses whether automobile insurers can require an insured to undergo a medical examination to determine eligibility for prescription medications claims.
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Relevant provisions of the Schedule
[10] The Schedule sets out the rules involved with making and administering claims for various categories of statutory accident benefits available to individuals injured in motor vehicle collisions.
[11] The processes for making claims vary depending on the type of benefit being claimed. For instance, the Schedule provides that claims for medical or rehabilitation benefits have different documentary requirements and procedures than claims for attendant care or income replacement benefits. When there is a dispute about entitlement to any benefit, an insured can initiate a proceeding at the LAT to have the matter adjudicated unless they are specifically barred from doing so for reasons outlined in section 55 of the Schedule.
[12] Section 44(1) of the Schedule provides that an insurer can require that an insured be examined by a regulated health professional to assist in determining entitlement to the statutory benefit being claimed. Section 44(3) creates exceptions for benefits payable in accordance with the Minor Injury Guideline, funeral benefits, and death benefits. The exceptions set out in section 44(3) are not applicable in this case.
[13] There is no dispute that failing to attend at an insurer examination under section 44, when properly requested, can bar an application to the LAT pursuant to section 55(1). The issue to be determined on this appeal is whether Intact had the authority to make the request for an examination under section 44 in the first place.
[14] Generally, claims for medical or rehabilitation benefits are submitted in a treatment and assessment plan (OCF-18) that must be approved by the insurer before the claim is paid: s. 38(2). If the insurer does not agree “to pay for all goods, services, assessments and examinations described in the treatment and assessment plan” the insurer may require the insured to undergo an examination under section 44 to determine their entitlement: s. 38(10).
[15] Prescription medications fall under the category of medical or rehabilitation benefits. However, section 38(2)(c) of the Schedule creates exceptions for claims for prescription medication and for claims for goods with a cost of $250 or less per item, which do not have to be submitted as part of a treatment and assessment plan, but rather a less cumbersome expense claim form (OCF-6). Regardless of how the claim is made, entitlement to any benefit in the medical or rehabilitation category depends on whether the expense is reasonable and necessary as a result of the impairment sustained by the insured person.
[16] Section 33 of the Schedule provides the insurer with one mechanism for determining whether a claimed expense is reasonable and necessary. Under section 33, an insurer can request information reasonably required to assist in determining entitlement to a benefit, including requiring the insured to sign a statutory declaration as to the circumstances that gave rise to the application, or submit to an examination under oath. If the information does not support eligibility, is not adequate or, as in this case, is not forthcoming, the remedy is simple – the insurer may deny the claim.
[17] Section 38 of the Schedule sets out the process for applying for medical or rehabilitation benefits. Section 38 specifically permits an insurer to require the insured to undergo a medical examination when there is a dispute involving an expense described in a treatment and assessment plan. There is no such provision with respect to claims that are submitted without the requirement of a treatment and assessment plan, such as claims related to prescription medication and goods under $250. The court further considers [at paras 18-36] the 'last antecedent rule' and insurer examination requests under SABS s.44.
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