Unlike the situation with litigation independent medical examinations per Rule 5.42, a Section B insurer is entitled to insist that the insured attend an independent medical examination per Section B Special Provision 4, and the examiner is entitled to set the conditions of the examination, including refusal to allow the examination to be video recorded.  The insurer is entitled to discontinue Section B benefits if the insured refuses to attend such an IME unless it is video recorded.

Greenidge v. Allstate Insurance Company, 2018 ABQB 266  per Neilsen, J. [4285]

FACTS AND ISSUES: A

llstate Insurance Company (“Allstate”) issued an SPF No 1 in relation to a 2012 motor vehicle owned by the plaintiff, Jenine Greenidge (the “Policy”). Greenidge was involved in a motor vehicle accident while operating the motor vehicle on January 2, 3015 (the “Accident”) while the Policy was in force.  

Following the Accident, Greenidge made a claim to Allstate for Section B benefits alleging that she had suffered soft tissue, whiplash, and TMJ injuries. Allstate made payments to her for both the whiplash and TMJ injuries.  

On July 16, 2015, Allstate made arrangements for an IME of Greenidge wherein she would be assessed by a specialist Dr. Grade (occupational medicine) pursuant to Special Provisions 4 and 6(b) of Section B of her auto policy, which  provide:  

(4) Medical Reports. . . 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, and also, in the case of the death of the insured person, to make an autopsy subject to the law relating to autopsies.  

. . .  

(6) WHEN MONEYS PAYABLE  

. . .  

(b)      No person shall bring an action to recover the amount of a claim under this section unless the requirements of provisions (3) and (4) are complied with, nor until the amount of the loss has been ascertained as provided in this section.

  Greenidge wanted a videographer present for her IME but Dr. Grade did not accept videographers. Allstate took the position that nothing in the SPF No 1 allowed for a right of insureds to insist on video recording of IMEs under Section B and that if the insured refuses to attend the insurer can discontinue any further Section B benefits. Greenidge told Allstate she would pay for the videographer at her expense or have a different practitioner who would allow a videographer.  

The IME never went ahead and Allstate denied further benefits to Greenidge.  

The Court had previously ordered the trial of issues as to:

  1. Whether or not an insurer can discontinue Section B benefits where an insured refuses to attend an IME under Special Provision 4.  
  2. Whether or not the insured can insist that the Section B IME be video recorded or if the insurer must accommodate such a request.  
  3. Whether or not Allstate beached the policy and/or acted in bad faith in discontinuing benefits upon the insured’s refusal to attend a Section B IME unless it is video recorded.

HELD: For the Defendant, Allstate: Allstate was not in breach of Section B of the Policy when it discontinued coverage for further benefits or when it denied any further coverage to Greenidge in relation to the TMJ injuries. 

Allstate was held not to have breached the terms of the policy or its duty of utmost good faith when it discontinued coverage for further benefits pursuant to Section B after Plaintiff refused to attend an IME without a videographer.

  • Special Provision 4 gives the insurer the right to have the insured attend a medical exam and that this includes:  
    • The right of the insurer to name the medical practitioner.  
    • The right of the medical examiner to determine the terms upon which the IME is conducted.  
  • Allstate was held not to have dealt with Greenidge’s claim unfairly.  
    • Allstate was not biased for selection and use of Dr. Grade.  
    • Allstate was reasonably justified in insisting that Greenidge attend the Medical Examination on the terms as determined by Dr. Grade.  
  • It was held that Dr. Grade was not a party to the policy and therefore was not bound by the terms. As a duly qualified practitioner, Dr. Grade was entitled to conduct the IME how she liked.  
    • An examination policy like Dr. Grade’s which permitted interpreters and chaperones but not videographers, did not amend the terms of the Policy.

The Court held that Rule 5.42 of the Alberta Rules of Court regarding video recorded of IMEs in litigation does not apply in the context of Section B IMEs.

  • The Legislature could have amended the Automobile Accident Insurance Benefits Regulation in such a way as to incorporate a reference to Rule 5.42 in the Special Provisions of Section B but chose not to.  
    • There was nothing to indicate that either party turned their minds to the application of the Rules in their contractual agreement

Greenidge was held to have breached Section B in refusing to attend an IME unless it was video recorded.  She was held not to be entitled to bring an action to recover a claim as she did not comply with the Section B requirements.

COMMENTARY:  An interesting argument was raised by the Plaintiff here: that the Alberta Rules of Court applied with regard to videotaping IMEs in a claims context. On first blush, this concept does not seem unreasonable – why wouldn’t our Rules apply where a dispute involving an IME comes to Court? However, as addressed by Justice Nielson, there are two distinct processes at play: the claims process and the court process. The IME in this case arose in a claims context which is governed by the contractual terms as between the insurer and the insured. The Rules contemplate an IME arising during litigation, not prior to its commencement. The fact that the IME is now disputed in the court context is somewhat of a red herring.