Here’s the short answer to that question: Yes you are required to attend a medical examination with a doctor or sometimes doctors hired and paid for by the insurance company for the purposes of your personal injury case.
But, Brian, what gives the insurance company the power to have me attend such an examination? I don’t want to see some quack doctor I’ve never met. I’m not comfortable disclosing to this doctor (who is a complete stranger) my pre-accident medical history and all of my accident related impairments. It all sounds creepy to me.
But, Ontario’s Courts have provisions giving the Defendant Insurance company the right to have you attend such an examination where your health is an issue in your case (such as a car accident case or a brain injury case)
Section 105 of the Courts of Justice Act provides:
(2)Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
(3)Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
(4)The court may, on motion, order further physical or mental examinations.
(5)Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.
Rule 33 of the Ontario Rules of Civil Procedure provides:
33.01 A motion by an adverse party for an order under section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party.
(2) The court may order a second examination or further examinations on such terms respecting costs and other matters as are just. R.R.O. 1990, Reg. 194, r. 33.02 (2).
Section 105 of the Courts of Justice Act, read in conjuction with Rule 33 provides the framework for insurance companies to conduct such examinations of a Plaintiff. These provisions also provide a framework for insurance companies to conduct multiple examinations of a plaintiff in a personal injury action. Our law firm often fights these motions. Ultimately, it’s up to a Judge to make a determination whether or not multiple insurance examinations are warranted.
The Courts look to the nature injuries sustained by the parties, the injury/pain allegations made in the Statement of Claim, and how many experts the Plaintiff has retained.
In a catastrophic injury case involving multiple orthopedic injuries, along with a brain injury, it might be reasonable for the Court to allow one insurance examination with a neurologist or neuropsychologist to examine the brain injury component of the claim. Along with one examination by an physiatrist or orthopedic surgeon to examine the physical injuries to the Plaintiff.
In other catastrophic motor vehicle accident cases, it might also be reasonable to a Plaintiff to attend an examination with a vocational assessor, occupational therapist, or social worker to determine their ability to return to work, or carry on with their day to day activities.
Courts look to make the process fair for both parties. It’s a delicate balancing act which is difficult to do, particularly in serious accident cases, chronic pain cases, and those cases where a multi disciplinary rehabilitation team is involved. There are many Court decisions on this topic. Some have a different twist, such as requiring that the defence medical examination to be videotaped or audio taped because the Plaintiff’s memory is so bad on account of traumatic brain injury. Other times, insurers want their examinations to be conducted by somebody who is NOT a doctor or a health care professional identified in the Courts of Justice Act. If you have any questions about the nature and the insurer’s demand for a second or third or even fourth medical examination in your case, feel free to call our law firm.
I have to give credit to TFC’s Terry Dunfield who stepped up huge and scored a second half injury time winner last night to beat the Whitecaps 3-2. Proud of Terry, and hopes he remains a member of TFC for a long time.