It is an all too common scenario: You continue to require treatment after being injured in a motor vehicle accident in Alberta, but your Section B insurer terminates your treatment benefits after subjecting you to an “Independent Medical Examination” conducted by one of their medical advisors (often referred to as a “hired gun”). I am often asked, can anything be done?
Your Section B insurance policy provides coverage for:
“…[A]ll reasonable expenses incurred within 2 years from the date of the accident as a result of those injuries for necessary medical, surgical, chiropractic, dental, hospital, psychological, physical therapy, occupational therapy, massage therapy, acupuncture, professional nursing and ambulance services and, in addition, for other service and supplies that are, in the opinion of the insured person’s attending physician and in the opinion of the Insurer’s medical advisor, essential for the treatment or rehabilitation of the injured person.”
In many cases, your attending physician’s opinion will differ from that given by your Section B insurer’s medical advisor. For example, your attending physician may recommend ongoing physical therapy, while your Section B insurer’s medical advisor may opine that further treatment is not medically “essential”. So, as it relates to coverage for your treatment benefits, whose opinion matters?
This issue does not appear to have been judicially considered by the courts in Alberta. However, the courts in New Brunswick have interpreted their Section B insurance policy in regards to this very issue (to which the wording contained therein is similar to the wording contained in Alberta’s Section B insurance policy). In Webb v. Aviva Insurance Company, 2011 NBQB 098, the Plaintiff successfully advanced a claim against her Section B insurer for treatment expenses incurred. In that case, her Section B insurer’s medical advisor conducted an “Independent Medical Examination” and concluded that further physiotherapy and massage therapy were not necessary. In contrast, her family physician wrote prescriptions to continue massage therapy. Massage therapy gave the Plaintiff some relief from her headaches. The Honourable Justice William T. Grant held the following at paragraphs 21 to 22:
“…In my view the doctor who would be in the best position to provide that opinion would be the attending physician. I therefore find that the test under sub-paragraph (a) for determining if a medical service is “necessary” is that it be deemed to be so in the opinion of the insured’s attending physician. Moreover, considering that the policy contains no parameters stating what the medical service must accomplish, I find that it need only provide some benefit to the insured in the attending physician’s opinion.
It follows then, and I find, that when a medical service has been recommended by the insured’s attending physician, as it has been in this case, it matters not what the insurer’s medical advisor says. The service is “necessary” as that term is used in sub-paragraph 1(a) of Section B of the policy and the insurer is liable to pay for it.”
This decision should be persuasive to the courts in Alberta and, in the view of this writer, such interpretation is in line with a plain language reading of Alberta’s Section B insurance policy.
If you are unfortunately in this very situation, it is advisable to seek the advice of an experienced personal injury lawyer to assist.