In the recent decision, Moussi v. TD Home and Auto Insurance Company, 2019 ABQB 242, the Alberta Court of Queen's Bench (the "Court") heard an application brought on behalf of the Plaintiff, Mohamed Moussi ("Moussi"). Moussi sought the direction of the Court to determine whether the defendant, TD Home and Auto Insurance Company ("TD"), was entitled to require that Moussi submit to an independent dental examination pursuant to Section B of the SPF-1 Policy. This is an important decision for insurers as it serves to reinforce the degree of cooperation expected between an insured and its insurer.
1. The facts
This action arose as the result of a motor vehicle accident ("MVA") in which Moussi, who was nine at the time of the accident, was a passenger in a car that was struck by another vehicle that failed to stop at a stop sign.
Following the accident, Moussi was diagnosed with a temporomandibular joint ("TMJ") injury, neck pain and dizziness. The TMJ injury was assessed by Moussi's dentist, who submitted an estimate of the cost for the treatment necessary to address the TMJ injury to TD. Moussi was insured under the SPF-1 Policy and was entitled to Section B benefits.
After the cost estimate, Notice of Loss and Proof of Claim Form were submitted on Moussi's behalf, TD requested an independent dental examination for Moussi, in order to assess the nature and extent of the TMJ injury. Counsel for Moussi declined TD's request on the basis that a dentist is not a medically qualified practitioner, as defined under Section B of the Alberta Standard Automobile Policy.
Further communication between the parties failed to resolve the dispute, and so the Plaintiff brought an application under Rule 7.1(2) of the Alberta Rules of Court seeking the Court's opinion.
2. The decision of the court
Master Birkett held that a dentist would qualify as a duly qualified medical practitioner under Section B of the SPF-1 Policy. Given this, in situations where the insurer makes a request to have the insured examined by a duly qualified medical practitioner named by the insurer and that request is reasonable, the insured is required to comply.
Master Birkett also canvassed some of the principles that under pin an insured's duty to cooperate with their insurer in order to resolve a claim. Particular focus was given to the different forms of cooperation that are required under Section B Accident Benefits:
- The insured must allow the insurer's medical advisor to review the insured's Attending Physician Report and expenses submitted.
- The insured must provide the opportunity for the insurer to have its duly qualified medical practitioner examine the insured when and as often as it reasonably requires.
In their submissions to the Court, counsel for the Plaintiff argued that the medical report provided by the Plaintiff's dentist was sufficient for assessing Moussi's injuries and that there was no basis in the Section B provisions of the SPR1 that entitled the insurer to have the insured examined by a non-medical doctor of their choosing. Counsel for the Plaintiff also cited an opinion provided by the Superintendent of Insurance in support of their position.
By contrast, TD advanced the argument, amongst others, that it could not assess the reasonableness of the medical report provided by the Plaintiff's dentist if they could not select a qualified medical practitioner of their choice, which in this case, was a dentist.
Master Birkett agreed with the argument presented by TD and stated that where an injury that gives rise to a Section B claim falls within the expertise of someone other than a doctor of medicine, then the definition of "duly qualified medical practitioner" must be expanded to include that person, who in this case was a dentist.
3. The take-away
This decision serves to reinforce the level of cooperation that the Court expects between insurers and their insured when it comes to resolving questions regarding the determination of the level of medical treatment required by the insured. Specifically, this decision serves as a reminder that insurers are within their rights to request examinations by qualified medical experts who are not MDs, provided that the examination is deemed to be reasonable.
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