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A Review of Luther v. Economical

The Financial Service Commission of Ontario's decision of Luther and Economical1 discusses the repercussions of insureds refusing to sign assessment centres' consent forms when attending examinations under the Statutory Accident Benefits Schedule. Mr. Luther was injured in a motor vehicle accident in May of 2007. In December of 2008, assessments were scheduled to determine his ongoing entitlement to income replacement benefits. On the day of the assessments, Mr. Luther attended the facility and was prepared to proceed with the examination. Nevertheless, and acting on the advice of his lawyer, Mr. Luther refused to sign the assessment centre’s consent form but was prepared to give verbal consent.

At issue was if his failure to sign an assessment centre's consent form constituted a 'failure to attend' pursuant to subsection 37(3) of the Statutory Accident Benefits Schedule.

The insurer's position was that the examination could not proceed without the signed consent forms. By refusing to sign, Mr. Luther thwarted the examination.

Mr. Luther's position was that, as the examination was mandatory, written consent was not required. In large part, his position was based on the principles that apply to examinations conducted pursuant to Section 105 of the Courts of Justice Act. Section 105 outlines the requirements for a court ordered medical examination when a party's physical or mental condition is at issue. The current case law holds that a party who is ordered to attend an examination pursuant to Section 105 is not obliged to sign the consent forms of the examining health practitioner.

Arbitrator Wilson distinguished examinations conducted pursuant to Section 42 of the Statutory Accident Benefits Schedule and Section 105 of the Courts of Justice Act. He also noted that the issue was if Mr. Luther had breached his obligations under the Statutory Accident Benefits Schedule.

Arbitrator Wilson observed that insurers have no uniform consent requirements. It was noted that section 42 assessments are the responsibility of the insurer. Despite this responsibility, insurers delegate the work of arranging examinations to commercial organizations. This has created a system where the assessors each have their own intake procedures and consents.

In Mr. Luther's case, his consent was not provided in the manner and form requested by the assessors. Nevertheless, it could not be said that he intentionally frustrated the assessment process. In fact, the examinations later occurred with different assessors who were agreed to modified consent forms. For Arbitrator Wilson, the fact that the examinations ultimately proceeded demonstrated that Mr. Luther and his counsel were not being unreasonable. As a result, the payments should not have been stopped. Mr. Luther was entitled to the repayment of benefits and ongoing payments were reinstated.

Arbitrator Wilson suggested that uniform intake and consent forms could have prevented Mr. Luther's situation. These consent forms should be simple and consistent. On a practical level, having unified consents will require the cooperation of insurers, assessors, and counsel. The unfortunate reality is that, while the Statutory Accident Benefits Schedule system is not adversary, it will be difficult to achieve the cooperation of every party. As a result, it is unlikely that we will see uniform consent forms until they are required pursuant to the Statutory Accident Benefits Schedule.

1FSCO A10-003773 (May 23rd 2012).

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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